[HISTORY: Adopted by the Board of Trustees of the Village of Canton 6-1-1981
by L.L. No. 4-1981. Amendments noted where applicable.]
The purpose of this chapter is to provide legal and financial protection
for those individuals serving the Village of Canton from losses which may
be brought against them in their individual capacities for actions taken while
in the performance of their official duties and responsibilities. In enacting
this chapter, the Board of Trustees finds that the State of New York has enacted
similar provisions for the legal and financial security of its officers and
employees and further finds that such security is also required for local
personnel. By enactment of this chapter, the Board of Trustees does not intend
to limit or otherwise abrogate any existing right or responsibility of the
village or its employees with regard to indemnification or legal defense.
It is solely the intent of this chapter to provide similar coverage for local
employees as is presently provided for state employees, so as to continue
to attract qualified individuals to local government service.
As used in this chapter, unless the context otherwise requires, the
following terms shall have the meanings indicated:
Any person holding a position by election, appointment or employment
in the service of the Village of Canton, whether or not compensated, or a
volunteer expressly authorized to participate in a municipally sponsored volunteer
program, but shall not include an independent contractor. The term "employee"
shall include a former employee, his estate or judicially appointed personal
representative.
A.Â
Upon compliance by the employee with the provisions of § 19-5 of this chapter, the village shall provide for the defense of the employee in any civil action or proceeding in any state or federal court arising out of any alleged act or omission which occurred or is alleged in the complaint to have occurred while the employee was acting within the scope of his public employment or duties or which is brought to enforce a provision of 42 U.S.C. § 1981 or 1983. This duty to provide for a defense shall not arise where such civil action or proceeding is brought by or on behalf of the Village of Canton.
B.Â
Subject to the conditions set forth in Subsection A of this section, the employee shall be entitled to be represented by the Village Attorney; provided, however, that the employee shall be entitled to representation by private counsel of his choice in any civil judicial proceeding whenever the Village Attorney determines, based upon his investigation and review of the facts and circumstances of the case, that representation by the Village Attorney would be inappropriate or whenever a court of competent jurisdiction, upon appropriate motion or by a special proceeding, determines that a conflict of interest exists and that the employee is entitled to be represented by private counsel of his choice. The Village Attorney shall notify the employee in writing of such determination that the employee is entitled to be represented by private counsel of his choice.
(1)Â
The Village Attorney may require, as a condition to payment
of the fees and expenses of such representation, that appropriate groups of
such employees be represented by the same counsel.
(2)Â
If the employee or group of employees is entitled to
representation by private counsel under the provisions of this chapter, the
Village Attorney shall so certify to the Village Board. Reasonable attorneys'
fees and litigation expenses shall be paid by the village to such private
counsel from time to time during the pendency of the civil action or proceeding,
subject to certification that the employee is entitled to representation under
the terms and conditions of this chapter by the head of the department, commission,
division, office or agency in which such employee is employed and upon the
audit and warrant of the Village Treasurer.
(3)Â
Any dispute with respect to representation of multiple
employees by a single counsel or the amount of litigation expenses or the
reasonableness of attorneys' fees shall be resolved by the court upon
motion or by way of a special proceeding.
C.Â
Where the employee delivers process and a request for a defense to the Village Attorney as required by § 19-5 of this chapter, the attorney shall take the necessary steps, including the retention of private counsel under the terms and conditions provided in Subsection B of this section, on behalf of the employee to avoid entry of a default judgment pending resolution of any question pertaining to the obligation to provide for a defense.
A.Â
The village shall indemnify and save harmless its employees
in the amount of any judgment obtained against such employees in any state
or federal court or in the amount of any settlement of a claim, provided that
the act or omission from which such judgment or settlement arose occurred
while the employee was acting within the scope of his public employment or
duties. The duty to indemnify and save harmless prescribed by this section
shall not arise where the injury and damage resulted from intentional wrongdoing
or recklessness on the part of the employee.
B.Â
An employee represented by private counsel shall cause
to be submitted to the Board of Trustees any proposed settlement which may
be subject to indemnification by the village, and, if not inconsistent with
the provisions of this section, the Mayor shall certify such settlement and
submit such settlement and certification to the Village Attorney. The Attorney
shall review such proposed settlement as to form and amount and shall give
his approval if in his judgment the settlement is in the best interest of
the village. Nothing in this section shall be construed to authorize the village
to indemnify or save harmless an employee with respect to a settlement not
so reviewed and approved by the Village Attorney.
C.Â
Upon entry of a final judgment against the employee,
or upon the settlement of the claim, the employee shall cause to be served
a copy of such judgment or settlement, personally or by certified or registered
mail, within 30 days of the date of entry or settlement, upon the Mayor, and,
if not inconsistent with the provisions of this section, such judgment or
settlement shall be certified for payment by such Mayor. If the Attorney concurs
in such certification, the judgment or settlement shall be paid upon the audit
and warrant of the Village Treasurer.
The duty to defend or indemnify and save harmless provided by this chapter
shall be conditioned upon delivery to the Village Attorney or his assistant,
at his office, by the employee of the original or a copy of any summons, complaint,
process, notice, demand or pleading within five days after he is served with
such document and upon the full cooperation of the employee in the defense
of such action or proceeding and in defense of any action or proceeding against
the village based upon the same act or omission and in the prosecution of
any appeal. Such delivery shall be deemed a request by the employee that the
village provide for his defense pursuant to this chapter.
The benefits of this chapter shall inure only to employees as defined
herein and shall not enlarge or diminish the rights of any other party, nor
shall any provision of this chapter be construed to affect, alter or repeal
any provision of the Workers' Compensation Law.
The provisions of this chapter shall not be construed to impair, alter,
limit or modify the rights and obligations of any insurer under
any policy of insurance.
The provisions of this chapter shall apply to all actions and proceedings
pending upon the effective date thereof or thereafter instituted.
Except as otherwise specifically provided in this chapter, the provisions
of this chapter shall not be construed in any way to impair, alter, limit,
modify, abrogate or restrict any immunity available to or conferred upon any
unit, entity, officer or employee of the village or any right to defense and/or
indemnification provided for any governmental officer or employee by, in accordance
with or by reason of any other provision of state or federal statutory or
common law.
