[HISTORY: Adopted by the Board of Trustees of the Village of Hamburg
2-2-2004 by L.L. No. 1-2004. Amendments noted where applicable.]
GENERAL REFERENCES
Officers and employees — See Ch. 54.
The purpose of this chapter is to provide legal and financial protection for those individuals serving the Village of Hamburg from losses which may be brought against them in their individual capacity for actions taken while in performance of their official duties and responsibilities. By enactment of this chapter, the Board of Trustees intends to confer the benefits of § 18 of Article 2 of the Public Officers Law of New York State upon covered persons as defined in § 23-2 of this code. It is the further intent of this chapter to provide supplemental defense and indemnification for punitive and exemplary damage as well as compensatory damages. The duty shall not arise where the injury or damages resulted from the intentional wrongdoing or maliciousness on the part of the covered person.
As used in this chapter, unless the context otherwise requires, the
following terms shall have the meanings indicated:
A proceeding before a governmental agency charged with administering
and implementing legislation.
An action brought to enforce, redress or protect private rights,
including suits at equity and at law.
Any person holding a position by election, appointment, or employment
in the service of the Village of Hamburg, whether or not compensated, but
shall not include an independent contractor. The term "covered person" shall
include a former covered person, his estate or judicially appointed personal
representative. The benefits of this chapter shall inure only to "covered
persons," as defined herein, and shall not enlarge or diminish the rights
of any other party.
The head of a department of the Village of Hamburg.
Any proceeding in which judicial action is invoked and taken in a
legally constituted court.
A member of the Village Board of Trustees appointed by the Mayor
to act as liaison to a particular Village department.
The Village of Hamburg.
The Village Administrator for the Village of Hamburg.
The Village Attorney for the Village of Hamburg.
A.
Upon compliance by the covered person with the provisions of § 23-5 of this chapter, the Village of Hamburg shall provide the defense of the covered person in any civil action, administrative or judicial, 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 covered person was acting within the scope of his public employment or duties. 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 Hamburg.
B.
Subject to the conditions set forth in Subsection A of this section, the covered person shall be entitled to be represented by the Village Attorney; provided, however, that the covered person shall be entitled to representation by private counsel of his choice in any civil, administrative or judicial action or 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 covered person is entitled to be represented by private counsel of his choice. The Village Attorney shall notify the covered person in writing of such determination that the covered person is entitled to be represented by private counsel of his choice. The Village Attorney may require, as a condition to payment of the fees and expenses of such representation, that appropriate groups of such covered persons be represented by the same counsel. If the covered person or group of covered persons is entitled to representation by private counsel under the provisions of this section, the Village Attorney shall so certify to the Board of Trustees. Reasonable attorneys' fees and litigation expenses shall be paid by the Village of Hamburg to such private counsel from time to time during the pendency of the civil action or proceeding, subject to certification that the covered person is entitled to representation under the terms and conditions of this section by the head of the department in which such covered person is employed, and upon the review of the Village Attorney and the Village Administrator, and approval by the Board of Trustees. Any dispute with respect to representation of multiple covered persons 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 special proceeding.
C.
Where the covered person delivers process and a request for a defense to the Village Attorney as required by § 23-5 of this chapter, the Village 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 covered person to avoid entry of a default judgment pending resolution of any question pertaining to the obligation to provide for a defense.
A.
The Village of Hamburg shall indemnify and save harmless
its covered persons in the amount of any judgment rendered against such covered
persons by any state or federal court or by any administrative agency or in
the amount of any settlement of a claim, including punitive or exemplary damages,
that arise out of a negligent or other act committed while in the proper discharge
of his or her duties and within the scope of his or her employment. The duty
to indemnify and save harmless prescribed by this section shall not arise
where the injury or damage resulted from intentional or malicious wrongdoing
on the part of the covered person.
B.
Such proper discharge of duty and scope of employment
shall be determined by a majority vole of a panel consisting of the Village
Administrator, the trustee-liaison to the department in which the covered
person is employed and the department head. In the absence of or unavailability
of a trustee-liaison, the Mayor shall sit on the panel. In the event that
the covered person that is the subject of the proper discharge and scope of
employment determination is the department head, or in the event that the
covered person does not belong to a department, the Village Attorney shall
sit as the third member of the panel. In the event that the Village Administrator
and the Village Attorney are the covered persons that are the subject of the
proper discharge and scope of employment determination, the panel shall consist
of the Board of Trustees.
C.
Any proposed settlement which may be subject to indemnification
must be presented to the Board of Trustees by the Village Attorney, or by
the covered person or his private counsel, within three business days of the
covered person's receipt of the settlement offer. The Board of Trustees, by
a majority of no less than three votes, may approve any proposed settlement.
In addition, the Board of Trustees, in its discretion, may initiate settlement
discussions as to any pending civil action, administrative proceeding or judicial
proceeding, or direct the Village Attorney or the Village Administrator to
initiate such settlement discussions. Further, after consultation
with the Village Attorney, the Board of Trustees may propose a settlement
to the adversarial party. The Village Attorney shall review such proposed
settlement as to form and amount and shall give his or her approval if, in
his or her 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 a covered person with respect to a settlement not so reviewed
and approved by the Village Attorney.
D.
Upon entry of a final judgment against the covered person
or upon the execution of a settlement of the claim, the covered person 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 Village Administrator, and, if not inconsistent with the provisions
of this section, such judgment or settlement shall be certified for payment
by the Village Administrator. If the Board of Trustees of the Village of Hamburg
concurs in such certification, the judgment or settlement shall be paid upon
the approval of the Board of Trustees. The Board of Trustees shall not concur
in the certification of a judgment that it had determined to appeal.
The duty to indemnify or save harmless provided by this chapter shall
be conditioned upon delivery to the Village Attorney, at his office by the
covered person 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 the full cooperation of the covered person 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 covered person that the Village
of Hamburg provide for his defense pursuant to this chapter.
A.
The provisions of this chapter shall not be construed
to affect, alter or repeal any provision of the Workers' Compensation Law.
B.
This chapter shall not in any way affect the obligation
of any claimant to give notice to the Village under any provision of law.
C.
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.
D.
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 covered person of the Village or any right
to defense and/or indemnification provided for any governmental officer or
covered person by, in accordance with, or by reason of, any other provisions
of state or federal statutory or common law.
A.
The Village of Hamburg shall provide for the defense
of any civil action or proceeding brought against a duly appointed police
officer and shall indemnify and save harmless such police officer from any
judgment of a court of competent jurisdiction whenever such action, proceeding
or judgment is for punitive or exemplary damages arising out of a negligent
act or other tort such police officer committed while in the proper discharge
of his/her duties and within the scope of his/her employment. This duty to
provide a defense shall not arise where the action or proceeding against such
police officer is brought by or at the behest of the Village itself.
B.
Such proper discharge and scope shall be determined by
a majority vote of a panel consisting of the Police Chief, the Village Administrator,
and the Trustee-liaison to the Police Department. The panel shall make its
determination at or before the time to file or serve an answer in a civil
action or proceeding; a determination favorable to such police officer may
thereafter be revoked by the panel only if such police officer, with respect
to any material and relevant facts, acts or omissions, lied in any investigation
of the underlying incident upon which the panel relied in making its original
determination, and the truth causes the panel to revise its original determination.
The panel's determination, original or revised, shall be in writing and served
promptly upon such police officer, and, if a determination is adverse to such
police officer, it shall state facts and reasons therefore. A special proceeding
brought pursuant to Article 78 of the New York Civil Practice Law and Rules
shall be the exclusive method by which such police officer aggrieved by a
determination may seek judicial review of the determination.
C.
The duties to defend and to indemnify and save harmless
for all damages, including compensatory and punitive or exemplary, shall be
conditioned upon delivery by such police officer to the Village Attorney of
any notice, summons, complaint or any other legal process within three business
days after he/she is served with such document; the full and truthful response
by such police officer in any and all Village investigations in the incident(s)
and transaction(s) upon which the action or proceeding is predicated; and
the full cooperation of such police officer in the defense of any action or
proceeding against him/her or against the Village based upon his/her alleged
acts or omissions and in the taking of any appeals.
The Board of Trustees of the Village of Hamburg hereby accepts the applicability
of § 18 of the Public Officers Law for the Village of Hamburg and
agrees that the Village shall be liable for costs incurred under the provisions
of § 18 of the Public Officers Law and confers upon the officers
and employees of the Village the benefits of § 18 of such law. Such benefits
shall supplement and he available in addition to defense and indemnification
protection conferred by the other provisions of this chapter.
The provisions of this chapter shall apply to all actions and proceedings
pending upon the effective date thereof or thereafter instituted.
If any provision of this chapter or the application thereof to any person
or circumstance is held to be unconstitutional or invalid, in whole or in
part, by any court of competent jurisdiction, such holding of unconstitutionality
or invalidity shall in no way affect or impair any other provision of this
chapter or the application of any such provision to any other person or circumstance.
This chapter shall take effect immediately upon filing with the Secretary
of State.
