[Adopted 11-22-2003 by L.L. No. 6-2003]
The Board of Trustees of the Village of Sea
Cliff hereby finds:
A.
The purpose or this local law and Article V created thereby is to provide legal and financial protection for those individuals serving the Incorporated Village of Sea Cliff from losses resulting from any civil or administrative action or proceeding, state or federal, 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 local law and Article V, the Board of Trustees of the Incorporated Village of Sea Cliff 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 local law and Article V, the Board of Trustees of the Incorporated Village of Sea Cliff 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 the intent of this local law and the enactment of Article V to provide coverage for local employees at least equal to that coverage which is presently provided for state employees, so as to continue to attract qualified individuals to local government services.
B.
The enactment of this local law will further the public
interest by encouraging and inducing persons to enter or remain in
public service by assuring them that they will be provided benefits,
i.e., defense and indemnification, in relation to actions brought
against them. Without such protection it would be difficult for the
Village to attract and keep competent public officers and employees,
particularly since the compensation to such persons is minimal or
nonexistent. Without assurance that the officers and employees of
the Village will not be called upon to personally defend themselves
against claims arising out of the daily operation of Village government
or to account in damages therefor, the Village cannot function effectively.
C.
The courts have found that it is against public policy to assess punitive damages against the state or its political subdivisions. It is the further intent of this legislation and the enactment of Article V thereby to indemnify the officers and employees of the Incorporated Village of Sea Cliff for punitive damages. The purpose of the Board of Trustees of the Incorporated Village of Sea Cliff in adopting this local law and Article V is that the protection afforded by this local law and Article V will allow and encourage suitable and highly qualified individuals to serve in government free from fear of unwarranted personal exposure and will allow those in government service to carry out their day-to-day activities with the same freedom.
For the purposes of this article, unless the
context or subject matter otherwise requires, the terms used herein
aware defined as follows:
The Board of Trustees of the Incorporated Village of Sea
Cliff.
Any commissioner, member of a public board or commission,
trustee, director, officer, department head, employee, volunteer expressly
authorized to participate in a publicly sponsored volunteer program,
or any other person holding a position by election, appointment or
employment in the service of the Village, whether or not compensated,
and shall include the employee in both his or her individual and/or
official capacity. The term "employee" shall include a former employee,
and his or her estate or judicially appointed personal representative.
The Incorporated Village of Sea Cliff.
The Incorporated Village of Sea Cliff.
A.
Upon compliance by the employee with the provisions of § 23-15 of this article, the Village shall provide for the defense of the employee in any civil or administrative action or proceeding, state or federal, arising out of any alleged act or omission which occurred or allegedly occurred while the employee was acting within the scope of his or her public employment or duties. This duty to provide for a defense shall not arise where such civil or administrative action or proceeding is brought by or at the behest of the Village.
B.
Subject to the conditions set forth in Subsection A of this section, the employee shall be entitled to be represented by private counsel of his choice in any civil or administrative action or proceeding whenever the chief legal officer of the Village or other counsel designated by the Village determines that a conflict of interest exists, or whenever a court, upon appropriate motion or otherwise by a special proceeding, determines that a conflict of interest exists and that the employee is entitled to be represented by counsel of his choice, provided, however, that the chief legal officer or other counsel designated by the Village may require, as a condition to payment of fees and expenses of such representation, that appropriate groups of such employees be represented by the same counsel. 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 action or proceeding with the approval of the Board of Trustees.
C.
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.
D.
Where the employee delivers process and a written request for a defense to the Village under § 23-15 of this article, the Village shall take the necessary steps 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.
The Village shall indemnify and save harmless its
employees in the amount of any judgment obtained against such employees
in any civil or administrative action or proceeding in a state or
federal court or administrative tribunal, 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 or her public employment or 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 the settlement by the Board of Trustees. The duty to indemnify
and save harmless prescribed by this subsection shall not apply to
punitive damages.
B.
Indemnification and saving harmless of Village employees
in the amount of any punitive damages shall be in accordance with
the following procedure and such additional procedures as may be established
by the Village Attorney:
(1)
Within 30 days of an employee's delivery of a summons,
or complaint, process, notice, demand or pleading containing a demand
for punitive damages, the Village Attorney shall make findings and
an initial determination whether the employee should or should not
be indemnified against any punitive damages, based upon the facts
and circumstances then known to the Village Attorney as follows:
(a)
Whether the employee's actions were or were
not within the scope of his or her employment;
(b)
Whether the employee's actions were or were
not exceptional misconduct which transgressed mere negligence or a
reckless or callous disregard of a person's rights so as to constitute
outrageous and intentional malicious and wanton disregard of the safety
or rights of others.
(c)
Whether the employee's actions were or were
not made in good faith and in the best interests of the municipality.
(d)
Whether the employee did or did not willfully
violate a clearly established provision of law or municipal policy.
(2)
In the event the Village Attorney is a named defendant
in an action or proceeding or cannot serve for any other reason, the
Deputy Village Attorney shall serve in stead of the Village Attorney
on the matter under review. In the event neither the Village Attorney
nor the Deputy Village Attorney can serve, the Mayor shall appoint
another municipal employee or a prior Village Trustee or employee
to serve in stead of the Village Attorney on the matter under review.
(3)
The findings and determination of the Village Attorney,
Deputy Village Attorney, or other municipal employee or person appointed
by the Mayor shall be provided to the employee, the Village Clerk,
and the Board of Trustees. The Board of Trustees shall meet as soon
as practicable in executive session to review such findings and determination
and to make a final decision whether the employee should or should
not be indemnified against any punitive damages. In making its decision,
the Board of Trustees shall take into consideration and give weight
to the initial and any additional findings made by the Village Attorney
or his substitute, and determine if the following have been met and,
if so met, shall make a determination that the employee should be
indemnified against any punitive damages:
(a)
The pleading containing a demand for punitive
damages is based on an act or omission of an employee acting within
the scope of his or her employment.
(b)
At the time of the action or omission giving
rise to the liability, the employee's actions were not exceptional
misconduct which transgressed mere negligence or a reckless or callous
disregard of a person's rights so as to constitute outrageous and
intentional malicious and wanton disregard of the safety or rights
of others.
(c)
At the time of the act or omission, the employee
acted in good faith and in the best interests of the Village; and
(d)
At the time of the act or omission, the employee
did not wilfully violate a clearly established provision of law or
municipal policy.
(4)
Deliberations, findings and determinations of the
Village Attorney and the Board of Trustees shall remain confidential.
C.
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 10 days of the date of entry or settlement, upon the Village
Clerk, and the amount of such judgment or settlement shall be paid
by the Village in accordance with the following procedures:
(2)
Any judgment or settlement obtained under § 23-12B shall be paid, provided the employee did not formerly misrepresent or omit material facts evidenced at trial which would have resulted in a decision that the employee should not be indemnified for punitive damages under the procedures and criteria set forth in Subsection B, above, and provided further that in the case of a settlement, the duty to pay the judgment or settlement shall be conditioned upon the approval of the amount of the settlement by the Board of Trustees.
Nothing in this article shall authorize the
Village to indemnify or save harmless an employee with respect to
any money recovered from an employee pursuant to § 51 of
the General Municipal Law.
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 any 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 civil or administrative action or proceeding in any
state or federal court or administrative tribunal.
The duty to defend or indemnify and save harmless
prescribed by this article shall be conditioned upon:
A.
Delivery by the employee to the Village Clerk of a
written request to provide for his or her defense, together with the
original or a copy of any summons, complaint, process, notice, demand
or pleading, within 10 days after he or she is served with such document.
B.
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.
A.
The benefits of this article 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 article be construed
to affect, alter or repeal any provision of the Workers' Compensation
Law.
B.
This Article shall not in any way affect the obligation
of any claimant to give notice to the Village under Section 10 of
the Court of Claims Act, § 50-e of the General Municipal
Law, or any other provision of law.
A.
The Mayor is hereby authorized and empowered to purchase
insurance from any insurance company created by or under the laws
of the State of New York, or authorized by law to transact business
in the State of New York, against any liability imposed by the provisions
of this article, or to have the Village act as a self-insurer with
respect thereto.
B.
The provisions of this article shall not be construed
to impair, alter, limit or modify the rights and obligations of any
insurer under any policy of insurance.
All payments made under the terms of this article,
whether for insurance or otherwise, shall be deemed to be for a public
purpose and shall be audited and paid in the same manner as other
public charges.
A.
Except as otherwise specifically provided in this
article, the provisions of this article 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 by, in accordance with, or by reason
of, any other provision of state or federal statutory or common law.
B.
Benefits accorded to employees under this article
shall take precedence over but shall not abrogate any defense or indemnification
protection accorded the same employees by any other enactment, and
any defense or indemnification protection heretofore enacted shall
remain available to any employees covered or protected thereby.
This local law and Article V enacted pursuant thereto shall apply to all civil or administrative actions or proceedings in which final judgment has not yet been entered.
If any clause, sentence, paragraph, section, part or provision of this local law or the enactment of Article V pursuant thereto or the application thereof to any person or circumstance shall be held 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, impair, or invalidate any other clause, sentence, paragraph, section, part or provision of this local law or Article V or the application of any such clause, sentence, paragraph, section, part or provision to any other person or circumstance.
