[HISTORY: Adopted by the Board of Trustees
of the Village of Plandome Manor 11-15-2005 by L.L. No. 13-2005 (Ch. 16 of the 2005 Code). Amendments noted where applicable.]
The purpose of this chapter is to provide legal
and financial protection for those individuals serving the Incorporated
Village of Plandome Manor from losses occasioned by civil actions
or proceedings which may be brought against them in their individual
capacity 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 Incorporated Village of Plandome
Manor, whether or not compensated. The term "Village employee" shall
not include an independent contractor. The term "Village employee"
shall include a former employee, the employee's estate or a judicially
appointed personal representative.
A.Â
Upon compliance by the employee with the provisions of § 17-5 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 or any other tribunal or 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 any chapter or section of Title 42 of the United States Code. This duty to provide for a defense shall not arise where such civil action or proceeding is brought by or on behalf of the Incorporated Village of Plandome Manor.
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, at Village expense, 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. 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. If the employee or group of employees is entitled to representation by private counsel under the provisions of this section, 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 section 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. 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 § 17-5 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 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 employee
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 or 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 Village 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 or the Village Hall
by the employee of the original or a copy of any summons, complaint,
process, notice, demand or pleading within 10 days after he is served
with such document or as soon as possible under the circumstances
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.
