[HISTORY: Adopted by the Board of Trustees
of the Village of Irvington 7-15-2002 by L.L. No. 5-2002. Amendments noted where
applicable.]
Throughout this chapter, the following terms
shall have the meanings indicated:
Any person holding a position by election, appointment or
employment in the service of the Village, including both compensated
persons and volunteers expressly authorized to participate in a Village-sponsored
volunteer program, but not including independent contractors. The
term "employee" shall also include the Village Attorney and former
employees of the Village, including the judicially appointed personal
representative of his or her estate.
The individual holding the position of Village Attorney,
except that, for actions or proceedings involving the Village Attorney,
the Village Board of Trustees shall substitute for the Village Attorney
throughout this chapter.
[Amended 3-19-2018 by L.L. No. 4-2018]
At the request of the employee and upon compliance by the employee with the provisions of § 19-4 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, including actions under 42 U.S.C. §§ 1981 - 1988, arising out of any alleged act or omission which the Village Attorney finds occurred or allegedly occurred while the employee was acting within the scope of his or her public employment and in the discharge of his or her 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 .
[Amended 3-19-2018 by L.L. No. 4-2018]
A.
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 approved by the Board
of Trustees, provided that the act or omission from which judgment
or settlement arose occurred while the employee was acting within
the scope of his or her public employment and in the discharge of
his or duties at the time the alleged damages were sustained.
B.
Except as otherwise provided by law, the duty to indemnify and save
harmless prescribed by this section shall not arise where the injury
or damage resulted from intentional wrongdoing or recklessness, on
the part of the employee. The Board of Trustees, however, may find
that such duty arises when a police officer or public works employee
is found by a court to have engaged in reckless conduct and the Board
of Trustees finds that all of the following requirements are satisfied:
[Amended 1-23-2020 by L.L. No. 5-2020]
(1)
Liability is based on an act or omission of an employee acting within
the scope of his/her employment;
(2)
At the time of the action or omission giving rise to the liability,
the employee acted without maliciousness and otherwise within the
standards required for employees holding comparable positions within
the Village;
(3)
At the time of the act or omission, the employee acted in good faith
and in the best interests of the Village; and
(4)
At the time of the act or omission, the employee did not willfully
violate a clearly established provision of law or Village policy.
The Village shall also indemnify and save harmless
its employees in the amount of any punitive damages in accordance
with the following procedure and such additional procedures as may
be established by the Village Attorney:
A.
In the event of a final judgment of punitive damages
against the employee, the employee shall serve copies of such judgment
personally or by certified or registered mail within 10 days of the
date of entry upon the Village Attorney and upon the Village Clerk
on behalf of the Village Board of Trustees (the "Village Board").
The Village Board shall meet as soon as practicable to review, make
findings, and determine if all the following have been met and, if
so met, shall appropriate the funds necessary to pay such punitive
damages:
(1)
The judgment of punitive damages is based on an act
or omission of an employee acting within the scope of his/her employment;
(2)
At the time of the action or omission giving rise
to the liability, the employee acted without recklessness, without
maliciousness and without gross negligence and otherwise within the
standards required for employees holding comparable positions within
the Village;
(3)
At the time of the act or omission, the employee acted
in good faith and in the best interests of the Village; and
(4)
At the time of the act or omission, the employee did
not willfully violate a clearly established provision of law or Village
policy.
B.
Except as otherwise required by federal or state law,
deliberations by the Village Board shall be held in executive session,
and the findings and determinations of the Village Board shall remain
confidential.
The duty to defend or indemnify and save harmless
prescribed by this chapter shall be conditioned upon the delivery
by certified or registered mail to the Village Attorney and to the
Village Clerk on behalf of the Village Board by the employee of copies
of any summons, complaint, notice, demand or pleading within 10 days
after he or she is served with such document; and 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 or her defense pursuant to this chapter. In the event
that the Village shall assume an employee's defense and thereafter
the employee fails to or refuses to cooperate in the formation or
presentation of his or her defense, the Village may withdraw its representation
and indemnification 10 days after giving written notice to the employee
of its intention to discontinue such representation and indemnification.
In the event that the act or omission upon which
the court proceeding against the employee constitutes the basis of
a pending or resolved disciplinary proceeding by the Village against
the employee, representation and indemnification by the Village may
be withheld until such disciplinary proceeding has been resolved.
Further, indemnification may be withheld if resolution of the disciplinary
proceeding fails or has failed to exonerate the employee as to such
an act or omission. The defense and indemnification of the employee
may not, however, be withheld merely because a judgment involves punitive
damages.
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 instituted on or after the effective date
of this chapter.
The provisions of this chapter shall not be
construed in any way to impair, alter, limit, modify or abrogate or
restrict any immunity available to or conferred upon any unit, entity,
officer or employee of the Village or agency or any other level of
government or any right to defense and/or indemnification provided
for any governmental officer or employee by, in accordance with or
by reason of any provision of state, federal, local law or common
law, including Article 2, § 18, of the Public Officers Law
of the State of New York. The Village of Irvington hereby agrees to
be held liable for costs (consisting of reasonable attorneys' fees
and litigation expenses) incurred under the provisions of said Article
2, § 18, of the Public Officers Law by conferring upon its
employees, as defined herein, the substantive benefits of that law
insofar as they shall supplement and be available in addition to defense
or indemnification protection conferred by this chapter. Insofar as
there shall be any conflict between provisions of Article 2, § 18,
of the Public Officers Law on matters and methods of procedure, this
chapter shall govern, but any conflict between Article 2, § 18,
of the Public Officers Law and this chapter with respect to substantive
coverage shall be resolved in favor of whichever law grants the employee
the greater coverage.
This chapter shall not in any way affect the
obligation of any claimant to give notice to the Village under any
rule, regulation, statute or other provision of law.
