[HISTORY: Adopted by the Board of Trustees of the Village of Perry 8-18-2003 by L.L. No. 3-2003. Amendments noted where applicable.]
As used in this chapter, unless the context otherwise requires, the following terms shall have the meaning indicated:
- Any Village commissioner, member of a Village board or commission, Village officer, Village employee, Village volunteer expressly authorized by the Village to participate in a publicly sponsored volunteer program, or any other person holding a Village position by election, appointment or employment in the service of the Village, whether or not compensated, but shall not include an independent contractor. The term "employee" shall include a former employee of the Village and his/her estate or judicially appointed personal representative.
- Village of Perry.
Upon compliance by the employee with the provisions of § 27-3 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 or in good faith purporting to act within the scope of his/her public employment or duties, including, without limitation, any civil action or proceeding arising out of any alleged act or omission in which it is alleged that the officer or employee has violated the civil rights of the claimant, petitioner or plaintiff under §§ 1981 and 1983 of the United States Civil Rights Act (42 U.S.C. §§ 1981 and 1983). Such defense shall not be provided where such action or proceeding is brought by or on behalf of the Village.
Subject to the conditions set forth in this chapter, the employee shall be represented by the Village Attorney or an attorney employed or retained by the Village for the defense of the employee.
The Village Board of the Village shall employ or retain an attorney for the defense of the employee whenever:
The Village does not have a Village Attorney;
The Village Board of the Village determines based upon its investigation and review of the facts and circumstances of the case that representation by the Village Attorney would be inappropriate; or
A court of competent jurisdiction determines that a conflict of interest exists and that the employee cannot be represented by the Village Attorney.
Reasonable attorney fees and litigation expenses shall be paid by the Village to such attorney employed or retained, from time to time, during the pendency of the civil action or proceeding, subject to certification by the Mayor that the employee is entitled to representation under the terms and conditions of this chapter. Payment of such fees and expenses shall be made in the same manner as payment of other claims and expenses of the Village.
Any dispute with respect to representation of multiple employees by the Village Attorney or by an attorney employed or retained for such purposes or with respect to the amount of the fees or expenses shall be resolved by the court.
Where the employee delivers process and request for a defense to the Village Attorney or the Mayor as required by § 27-3 of this chapter, the Village Attorney or the Mayor, as the case may be, shall take the necessary steps, including the retention of an attorney 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 relating to the obligation of the Village to provide a defense.
Subject to the conditions set forth in this chapter, the Village shall indemnify and save harmless its employees in the amount of any judgment obtained against such employees in a 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 claim arose occurred while the employee was acting within the scope of his/her public employment duties; provided, further, that in the case of a settlement, the duty to indemnify and save harmless shall be conditioned upon the approval of the amount of settlement by the Village Board of the Village. The duty to indemnify and save harmless prescribed by this subsection shall not arise where the injury or damage resulted from intentional wrongdoing or recklessness on the part of the employee. Nothing in this subsection shall authorize the Village to indemnify or save harmless an employee with respect to punitive or exemplary damages, fines or penalties, or money recovered from an employee pursuant to § 51 of the General Municipal Law; provided, however, that the Village shall indemnify and save harmless its employees in the amount of any costs, attorney fees, damages, fines or penalties which may be imposed by reason of an adjudication that an employee, acting within the scope of his/her public employment or duties, has, without willfulness or intent on his/her part, violated a prior order, judgment, consent decree or stipulation of settlement entered in any court of this state or of the United States.
The duty to defend provided in this chapter shall be contingent upon delivery to the Village Attorney or, if none, to the Mayor of the original or a copy of any summons, complaint, process, notice, demand or pleading within 10 days after he/she is served with such document and the full cooperation of the employee in the defense of such action or proceeding and 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/her defense.
The duty to indemnify and save harmless prescribed by this chapter shall be conditioned upon 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.
Upon entry of a final judgment against the employee, or upon the settlement of the claim, the employee shall serve 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 of the Village, and if not inconsistent with the provisions of this section, the amount of such judgment or settlement shall be paid by the Village.
The benefits of this chapter will inure only to employees as defined herein and shall not enlarge or diminish the rights of any other party, nor shall any provisions of this chapter be construed to affect, alter or repeal any provisions 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.
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 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.
The provisions of this chapter shall apply to all actions and proceedings specified herein which have been commenced, instituted or brought on or after the effective date of this chapter.