CHAPTER 5

INDEMNIFICATION OF

OFFICERS AND EMPLOYEES

§ 5.1 Legislative Intent

The purpose of this Chapter is to provide legal and financial protection for those individuals serving the Village of Mineola from losses which may be brought against them in their individual capacities 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 of Mineola or its employees with regard to indemnification or legal defense. It is solely the intent of this Chapter to provide maximum coverage for local employees such as is presently provided for state employees, so as to continue to attract qualified individuals to local government service.

§ 5.2 Definition

As used in this Chapter, unless the context otherwise requires, the term "employee" shall mean any person holding a position by election, appointment or employment in the service of the Village of Mineola, whether or not compensated, or a volunteer expressly authorized to participate in a municipality-sponsored volunteer program, and shall include a former employee, his or her estate or a judicially appointed personal representative.

§ 5.3 Village to Provide Defense

Upon compliance by the employee with the provisions of § 5.5 of this Chapter, the Village of Mineola shall provide for the defense of the employee in any civil and criminal action or proceeding in any state or federal court arising out of any alleged act or omission of a federal, state or local rule or regulation which occurred or is alleged in the complaint to have occurred

*Section numbers have been prefaced editorially by Chapter numbers throughout; otherwise exactly as enacted by Local Law #9 of the year 1996.

§ 5.3 MUNICIPAL CODE

while the employee was acting within the scope of his or her public employment or duties, or which is brought to enforce a provision of the laws of the United States including, but not limited to, Section nineteen hundred eighty-one or nineteen hundred eighty-three of title forty-two of the United States Code.

B. Representation by Village Attorney; private counsel.

Subject to the conditions set forth in Subdivision A of this Chapter, 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 or her choice in any civil judicial proceeding whenever the Village Attorney determines, based upon his or her 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 special proceeding, determines that a conflict of interest exists and that the employee is entitled to be represented by private counsel of his or her 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 or her 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 attorney's 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 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 of the amount of litigation expenses or the reasonableness of attorney's fees shall be resolved by the court upon motion or by way of a special proceeding.

C. Duty of Village Attorney.

Where the employee delivers process and a request for a defense to the Village Attorney as required by § 5.5 of this Chapter, the Village Attorney shall take the necessary steps including the

INDEMNIFICATION OF OFFICERS AND EMPLOYEES § 5.4

retention of private counsel under the terms and conditions provided in Subdivision B of this Section on behalf of the employee to avoid entry of a default judgment pending resolution of any question relating to the obligation to provide a defense.

§ 5.4 Responsibilities of Village

A. Indemnification of employees.

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 of settlement arose occurred while the employee was acting within the scope of his or public employment or duties; the duty to indemnify and safe harmless prescribed by this Subdivision shall not arise where the injury or damage resulted from intentional wrongdoing or recklessness on the part of the employee.

B. Settlement.

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 or her approval if in his or her judgment the settlement is in the best interest of the Village. Nothing in this Subdivision 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. Payment of final judgment or settlement.

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 thirty (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 the Mayor. If the Village Attorney concurs in such certification, the judgment or settlement shall be paid upon the audit and warrant of the Village Treasurer.

§ 5.5 MUNICIPAL CODE

§ 5.5 Cooperation of Employee required

The duty to defend or indemnify and save harmless provided by this Chapter shall be conditioned upon (1) delivery to the Village

Attorney or his or her assistant, at his or her office, by the employee of the original or a copy of any summons, complaint, process, notice, demand or pleading within five (5) days after he or she is served with such document; and (2) 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 or her defense pursuant to this Chapter.

§ 5.6 Rights of Other Parties Not Enlarged or Diminished

The benefits of this Chapter will 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 provisions of the Workers' Compensation Law.

§ 5.7 Policies of Insurance Not Affected

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.

§ 5.8 Applicability of Chapter to Pending Litigation

The provision of this Chapter shall apply to all actions and proceedings pending upon the effective date thereof or thereafter instituted whether or not the actions or commissions complained of occurred prior to or subsequent to the effective date of this Chapter.

§ 5.9 Immunity Not Affected

Except as otherwise specifically provided in this Chapter, the provisions o;f this Chapter shall not be construed in any way to impair, later, 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

INDEMNIFICATION OF OFFICERS AND EMPLOYEES § 5.10

state or federal statutory or common law.

§ 5.10 Unconstitutionally or Illegality

If any provision of this Chapter or the application thereof to any person or circumstances be held unconstitutional or invalid in whole or in part by any court of competent jurisdiction such holding of unconstitutionally or invalidity shall in no way affect or impair any other provision of this Section or the application of any such provision to any other person or circumstance.

HISTORICAL NOTE

This Chapter was enacted by Local Law #9 of the year 1996. It is exactly as enacted except that Section numbers have been prefaced by Chapter numbers. Chapter 5 as adopted as part of the Municipal Code is repealed by implication. Originally. this topic was contained in Local Law #2 of the year 1980.

References:

Defense and indemnification of officers and employees by local law, by-law, resolution, rule or regulation. Pub Off L § 18.

Defense for criminal offenses. Municipalities may provide legal defense for officers and employees in criminal matters [arising out of the performance of their duties.] Op St Compt 85- 22.

Reimbursement for defense.

In the absence of a statute or ordinance empowering a municipality to defend its officials there can be no reimbursement for legal fees and disbursements. Corning v Laurel Hollow, 48 NY2d 238.