[HISTORY: Adopted by the Board of Trustees of the Village of Penn Yan 12-21-1999 by L.L. No. 11-1999. Amendments noted where applicable.]
Officers and employees — See Ch. 19.
Editor's Note: This local law was adopted as Chapter 77 but was renumbered to fit into Part I, Administrative Legislation, of the Code.
As used in this chapter, unless the context otherwise requires, the following items shall have the meanings indicated:
- Any person holding a position by election, appointment or employment in the service of the Village, whether or not compensated for the services, but not including a volunteer or independent contractor. The term "employee" shall include a former employee, his estate or judicially appointed representative.
- The Village of Penn Yan, New York.
Upon compliance by the employee with the provisions of § 7-4 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 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 or her public employment or duties. Such defense shall not be provided where such civil 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 Trustees 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 Trustees 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 attorneys' 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 as 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 a request for a defense to the Village Attorney or the Mayor as required by § 7-4 of this chapter, the Village Attorney or the Mayor, as the case may be, shall take all 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 the question relating to the obligation of the Village to provide a defense.
The Village shall indemnify and save harmless its employees in the amount of any judgment obtained against such employees in 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 public employment or duties; provided, further, that in 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 Trustees.
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.
Nothing in this section 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, attorneys' fees, damages, fines or penalties which may be imposed by reason of an adjudication that an employee, acting within the scope of his or her public employment or duties, has, without willfulness or intent on his or her part, violated a prior order, judgment, consent decree or stipulation of settlement entered in any court of this state or the United States.
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; and, if not inconsistent with the provisions of this section, the amount of such judgment or settlement shall be paid by the Village.
The duty to defend provided in this chapter shall be contingent upon:
Delivery by the employee to the Village Attorney or to the Mayor of the Village of Penn Yan of the original or a copy of any summons, complaint, process, notice, demand or pleading within five 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, unless the employee shall state in writing that a defense is not requested.
The benefits of this chapter will inure only to the employees 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 provisions of the Workers' Compensation Law.
Except as otherwise provided in this chapter, benefits accorded to an employee under this chapter shall be in lieu of and take the place of defense or indemnification protections accorded the same employees by another enactment, unless the Board of Trustees of the Village of Penn Yan shall have provided that these benefits shall supplement and be available in addition to defense or indemnification protection conferred by another enactment.
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 to liability 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 Village is hereby authorized and empowered to purchase insurance from any insurance company created by or under the laws of this state or authorized to transact business in this state against any liability imposed by the provisions of this chapter or to act as a self-insurer with respect thereto.
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.
This chapter shall not in any way affect the obligation of any claimant to give notice to the Village under § 10 of the Court of Claims Act or § 55, Subdivision (e) of the General Municipal Law, or any other provision of law.
Editor's Note: Section 55 of the General Municipal Law, related to appeals in actions against a municipality on a bond, note or interest-bearing coupon, was repealed L. 1943, c. 712, § 3, effective September 2, 1945. See now Local Finance Law § 167.00.
If any provision of this chapter or the application thereof to any person or circumstance shall be held unconstitutional or invalid in whole or in part by any court, 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.