[Adopted 7-19-1980 by L.L. No. 7-1980]
The purpose of this article is to provide legal
and financial protection for those individuals serving the Village
of Ocean Beach from losses 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 article,
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 article, 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 article 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 article, 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 Village of Ocean Beach, whether or
not compensated, or a volunteer expressly authorized to participate
in a municipally sponsored volunteer program, but shall not include
an independent contractor. The term "employee" shall include a former
employee, his estate or judicially appointed personal representative.
A.
Upon compliance by the employee with the provisions of § 30-5 of this article, 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 within the scope of his public employment or duties or which is brought to enforce a provision of 42 U.S.C. § 1981 or 1983. 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 of Ocean Beach.
B.
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 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 Board of Trustees. 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.
Where the employee delivers process and a request for a defense to the Village Attorney as required by § 30-5 of this article, the Attorney shall take the necessary steps, including the retention of private counsel under the terms and conditions provided in Subsection B above, 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 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.
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 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.
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 article shall be conditioned upon delivery to the
Village Attorney, at his office, by the employee, of the original
or a copy of any summons, complaint, process, notice, demand or pleading
within five days after he is served with such document; 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
state 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 article.
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.
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.
The provisions of this article shall apply to
all actions and proceedings pending upon the effective date thereof
or thereafter instituted.
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 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 government officer or employee by, in accordance
with or by reason of any other provision of state or federal statutory
or common law.