VILLAGE OF PORT JEFFERSON CODE PART 7 ADMINISTRATIVE LEGISLATION CHAPTER 60 OFFICERS AND EMPLOYEES ARTICLE I DEFENSE AND INDEMNIFICATION (00.1-60.3) ยง60.1 Definitions: As used in this article, the following terms shall have the meanings indicated: EMPLOYEE: Any commissioner, member of a public board or commission, trustee, director, officer, 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, including former employees, his or her estate or judicially appointed personal representative. ยง60.2 Agreement to hold harmless; rights of insurers; incurring of costs. A. The Incorporated Village of Port Jefferson hereby confers the benefits of ยง 18 of the Public Officers Law on the employees of the Village and agrees to hold them harmless and to indemnify them from financial loss and legal expense arising from any claim, demand, suit or judgment, arising from any past or future negligence or act, which negligence or act arose in the discharge of their duties and within the scope of their employment, where such damages did not result from any willful and/or wrongful act or gross negligence. The benefits and protections conferred by this provision require that all employees shall, within five days of the time that they are served with any summons, complaint, process, notice, demand or pleading, deliver the same to the Village Clerk. B. Upon the required delivery to the Village Clerk, the Village Attorney or such other attorney duly selected by the Board of Trustees shall assume control and responsibility for the representation of such employee of the Village. Such employee shall cooperate fully with the office of the Village Attorney or the attorney that is selected by the Village for representation in the defense of the claim or action. C. This section shall not in any way impair, limit or modify the rights and obligations of any insurer under any policy of insurance. D. The benefits of this section shall inure only to employees of the Village and shall not enlarge or diminish the rights of any other party. E. The Village will incur the costs of providing the benefits that e available under ยง 18 of the Public Officers Law. ยง60.3 Severability. In the event that this article or any portion of it is determined to be invalid or void, then the remainder of the article shall remain in full force and effect.
VILLAGE OF NORTHPORT INDEMNIFICATION
CODE
CHAPTER
24
DEFENSE
AND
§ 24-1 Purpose. The purpose of this chapter is to provide for the defense and indemnification of village employees pursuant to § 18 of the Public Officers Law. § 24-2 Definitions. As used in this chapter, the following terms shall have the meanings indicated: VILLAGE EMPLOYEE: Any commissioner, member of a public board or commission, trustees, director, officer, 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 of Northport, 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. § 24-3 Defense. The Village of Northport hereby confers the benefits of § 18 of the Public Officers Law upon its employees, subject to the limitations set forth in said § 18. § 24-4 Indemnification. The Village of Northport hereby agrees to be held liable for the costs incurred under § 18 of the Public Officers Law, subject to the limitations set forth in said § 18.
VILLAGE OF GARDEN INDEMNIFICATION
CITY
CODE
CHAPTER
9
DEFENSE
AND
ยง 9-1 Definitions. As used in this chapter, unless the context otherwise requires, the following terms shall have the meanings indicated: EMPLOYEE Any person holding a position by election, appointment or employment in the service of the Village of Garden City, whether or not compensated, but shall not include an independent contractor. The term "employee" shall include a former employee, his estate or judicially appointed personal representative. 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. ยง 9-2 Defense of employees. At the request of an employee and upon compliance by the employee with all of the provisions of this chapter, the Village shall provide for the defense of an employee in any civil action or proceeding in any state or federal court, including actions under Sections 1981 through 1988 of Title 42 of the United States Code, arising out of any alleged act or omission which the Village Board of Trustees finds occurred while the employee was acting within the scope of his public service and in the discharge of his duties and was not in violation of any rule or regulation of the Village at the time the alleged act or omission occurred. ยง 9-3 Indemnification of employees. At the request of an employee and upon compliance by the employee with all of the provisions of this chapter, 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 approved by the Village Board of Trustees, provided that the Village Board of Trustees finds that the act or omission from which such judgment or settlement arose occurred while the employee was acting within the scope of his public service and in the discharge of his duties and was not in violation of any rule or regulation of the Village at the time the alleged act or omission occurred and the damages were sustained. ยง 9-4 Exceptions. [Amended 10-7-2004 by L.L. No. 3-2004] The duty to indemnify and save harmless prescribed by this chapter shall not arise where the alleged act or omission, injury or damage resulted from intentional wrongdoing or recklessness on the part of the employee or where the civil action or proceeding is brought by or on behalf of the Village or any other federal, state or municipal entity.
ยง 9-5 Conditions. [Amended 10-7-2004 by L.L. No. 3-2004] A. The duty to defend or indemnify and save harmless prescribed by this chapter shall be conditioned upon: (1) The delivery by the employee to the Village Clerk, at his office, of the original or a copy of any summons, complaint, notice, petition, process, demand or pleadings within 10 days after the employee is served with such document; and (2) The full cooperating 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. (3) The full cooperation of the employee in making settlements. B. Such delivery shall be deemed a request by the employee that the Village provide for his defense pursuant to this chapter. C. In the event that the Village shall assume an employee's defense and thereafter the employee fails to or refuses to cooperate in the formation or presentation of his defense, the court shall permit the Village to withdraw its representation 10 days after giving written notice to the employee of its intention to discontinue such representation. D. The employee shall not admit liability or settle any action or proceeding or incur any cost or expense without the written consent of the Village. The Village shall have the right to make such investigation and negotiations and settle any action or proceeding as the Village deems expedient. If the employee refuses to consent to any settlement recommended by the Village, the employee shall thereafter negotiate or defend such action or proceeding independently of the Village, and the liability of the Village shall not exceed the amount for which the action could have been settled plus defense costs incurred with the Village's consent up to the date of such refusal. ยง 9-6 Withholding of representation and indemnification for disciplinary proceedings. In the event that the act or omission upon which the court action or proceeding against the employee is based was or is also the basis of a disciplinary proceeding by the Village against the employee, representation by the Village and indemnification by the Village may be withheld: A. Until such disciplinary proceeding has been resolved; and B. Unless the resolution of the disciplinary proceeding completely exonerated the employee as to such act or omission. ยง 9-7 Time limits. Every action or proceeding instituted hereunder, including an action brought to enforce a provision of Sections 1981 through 1988 of Title 42 of the United States Code, shall be commenced pursuant to the provisions of ยง 51-i of the General Municipal Law and within one year and 90 days. No action or proceeding instituted hereunder, other than one instituted pursuant to Sections 1981
through 1988 of Title 42 of the United States Code, shall be prosecuted or maintained against the Village or an employee unless notice of claim shall have been made and served upon the Village in compliance with ยง 50-e of the General Municipal Law and within 90 days after the claim arises. ยง 9-8 Attorney representation. Subject to the conditions set forth in this chapter, the employee shall be entitled to be represented by an attorney to be retained by the Village Board of Trustees. The Village shall have no liability to represent, defend or hold harmless an employee who is represented by an attorney other than one retained by the Village Board of Trustees. ยง 9-9 Nonrepresentation in certain actions. [Amended 10-7-2004 by L.L. No. 3-2004] Nothing in this chapter 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 Section 51 of the General Municipal Law; provided, however, that the Village shall indemnify and save harmless an employee in the amount of any costs, attorneys' fees, damages, fines or penalties which may be imposed by reason of an adjudication that the employee, acting within the scope of his public employment or duties, has, without willfulness or intent on his part, violated a prior order, judgment, consent decree or stipulation of settlement entered in any court of this state or of the United States. ยง 9-10 Interpretation. A. The provisions of this chapter shall not be construed to affect, alter or repeal any provision of the Workers' Compensation Law. B. This chapter shall not in any way affect the obligation of any claimant to give notice to the Village under any provision of law. C. 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. D. 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 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.
ยง 9-11 Purchase of liability insurance.
The Board of Trustees may, by resolution, undertake to purchase liability insurance for its employees to insure against acts or omissions covered by this chapter. ยง 9-12 Applicability. The provisions of this chapter shall apply to all actions and proceedings pending upon the effective date thereof or thereafter instituted.
VILLAGE OF HEWLETT HARBOR CODE CHAPTER 85 INDEMNIFICATION OF EMPLOYEES ยง 85-1 Indemnification; exceptions. The Village of Hewlett Harbor indemnifies and holds harmless each and every elected and appointed official, officer and employee of the Village and shall pay or cause to be paid all reasonable and necessary expenses, including attorney's fees, to defend any such person in any action or proceeding arising out of any act or omission to act in behalf of the Village; provided, however, that this chapter shall not apply with respect to any claim for malpractice and further that the Village shall have no obligation to pay for the defense of any such person charged with a crime or offense or to pay any penalty or fine in connection therewith.
VILLAGE OF ROCKVILLE CENTRE INDEMNIFICATION OF EMPLOYEES
CODE
CHAPTER
85
§16-1 Purpose. The purpose of this chapter is to confer the benefits of §18 of Article 2 of the Public Officers Law of New York State upon covered persons, as defined in §16-2 of Chapter 16 of the Code of the Village of Rockville Centre. The intent of this legislation is to defend and indemnify covered persons, who have been named in administrative or judicial proceedings. The further intent is to provide supplemental defense and indemnification for punitive and exemplary damages, as well as compensatory damages. The duty shall not arise where the injury or damage resulted from the intentional wrongdoing or maliciousness on the part of a covered person. § 16-3 Village to provide for defense of covered person. A. The Village shall provide for the defense of the covered person in any common law or statutory civil action, administrative proceeding or judicial 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 covered person was acting within the scope of his or her employment with the Village or duties; provided, however, that the duty of the Village to defend or save harmless shall be conditioned upon: (1) Delivery to the Village Attorney at his or her offices by the covered person 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. Such delivery shall be deemed a request by the covered person that the Village provide for his or her defense pursuant to this chapter. (2) The full cooperation of the covered person 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. B. This duty to provide for a defense shall not arise where such civil action or administrative or judicial proceeding is brought by or on behalf of the Village, but shall arise where such civil action or administrative or judicial proceeding arises as a cross-claim or counterclaim in response to a civil action or administrative or judicial proceeding brought by or on behalf of the Village. § 16-4 Representation by Village Attorney or private counsel. Subject to the conditions set forth in § 16-3 of this chapter, the covered person shall be entitled to representation by private counsel of his or her choice in any civil action or administrative or 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 a special proceeding, determines that a conflict of interest exists and that the covered person is entitled to be represented by private counsel of his or her choice. The Village Attorney shall notify
the covered person in writing of such determination that the covered person is entitled to be represented by private counsel. § 16-5 Fees and expenses. The Village Attorney may require, as a condition to payment of the fees and expenses of such representation by private counsel, that appropriate groups of such covered persons be represented by the same counsel. If the covered person or group of covered persons is entitled to representation by private counsel under the provisions of § 16-4 of this chapter, the Village Attorney shall so certify to the Village Comptroller. 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 covered person is entitled to representation under the terms and conditions of § 16-4 of this chapter by the head of the department or office in which such covered person is employed and upon the audit and warrant of the Village Comptroller. Any dispute with respect to representation of multiple covered persons 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. § 16-6 Authority of Village Attorney. Where the covered person delivers process and a request for a defense to the Village Attorney, as required by § 16-3 of this chapter, the Village Attorney shall take the necessary steps, including the retention of private counsel, under the terms and conditions therein provided, on behalf of the covered person to avoid entry of a default judgment pending resolution of any question pertaining to the obligation to provide for a defense. § 16-7 Judgments and settlements. A. The Village shall indemnify and save harmless its covered persons in the amount of any judgment rendered against such covered person by any state or federal court or by any administrative agency or in the amount of any settlement of a claim, including punitive or exemplary damages, that arise out of a negligent or other act committed while in the proper discharge of his or her duties and within the scope of his or her employment. The duty to indemnify and save harmless prescribed by this section shall not arise where the injury or damage resulted from intentional wrongdoing on the part of the covered person. B. Such proper discharge of duty and scope of employment shall be determined by a majority vote of a panel consisting of the Village Administrator, the Trustee-liaison to the department in which the covered person is employed and the department head. In the absence of or unavailability of a Trustee-liaison, the Mayor shall sit on the panel. In the event that the covered person that is the subject of the proper discharge and scope of employment determination is the department head, or in the event that the covered person does not belong to a department, the Village Attorney shall sit as the third member of the panel. In the event that the Village Administrator and the Village Attorney are the covered persons that are the subject of the proper discharge and scope of employment determination, the panel shall consist of the Board of Trustees.
C. Any proposed settlement, which may be subject to indemnification, must be presented to the Board of Trustees by the Village Attorney, or by the covered person or his private counsel, within three business days of the covered person's receipt of the settlement offer. The Board of Trustees, by a majority of no less than three votes, may approve any proposed settlement. In addition, the Board of Trustees, in its discretion, may initiate settlement discussions as to any pending civil action, administrative proceeding or judicial proceeding, or direct the Village Attorney or the Village Administrator to initiate such settlement discussions. Further, after consultation with the Village Attorney, the Board of Trustees may propose a settlement to the adversarial party. 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 section shall be construed to authorize the Village to indemnify or save harmless a covered person with respect to a settlement not so reviewed and approved by the Village Attorney. D. Upon entry of a final judgment against the covered person or upon the execution of a settlement of the claim, the covered person 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 head of the department or office in which he or she is employed or under whom he or she served, and, if not inconsistent with the provisions of this section, such judgment or settlement shall be certified for payment by such head of the department or office. If the Board of Trustees of the Incorporated Village of Rockville Centre concurs in such certification, the judgment or settlement shall be paid upon the audit and warrant of the Village Comptroller. The Board of Trustees shall not concur in the certification of a judgment that it has determined to appeal. ยง 16-8 Damages, fines and penalties. Nothing in this chapter shall authorize the Village to indemnify or save harmless a covered person with respect to money recovered from a covered person pursuant to Article 7-A of the State Finance Law. ยง 16-9 Construal of provisions. A. The provisions of this chapter shall not be construed to affect, alter or repeal any provision of the Workers' Compensation Law. B. This chapter shall not in any way affect the obligation of any claimant to give notice to the Village under any provision of law. C. 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. D. 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 covered person of the Village or any right to defense and/or indemnification provided for any governmental officer or covered person by, in accordance with or by reason of any other provisions of state or federal statutory or common law.
§ 16-10 Applicability. The provisions of this chapter shall apply to all actions and proceedings pending upon the effective date hereof or hereafter instituted. § 16-11 Liability for costs. The Board of Trustees of the Incorporated Village of Rockville Centre hereby accepts the applicability of § 18 of the Public Officers Law for the Incorporated Village of Rockville Centre and agrees that the Village shall be liable for costs incurred under the provisions of § 18 of the Public Officers Law and confers upon the officers and employees of the Village the benefits of § 18 of such law. Such benefits shall supplement and be available in addition to defense and indemnification protection conferred by the other provisions of this chapter. § 16-12 Police officers. Notwithstanding the provisions of any other law, code or charter, the Village shall provide for the defense of any civil action, administrative proceeding or judicial proceeding brought in any state or federal court against a duly appointed police officer of the Rockville Centre Police Department and shall indemnify and save harmless such police officer from any judgment of a court of competent jurisdiction whenever such action, proceeding or judgment is for damages, including punitive or exemplary damages, arising out of a negligent act or other tort of such police officer committed while in the proper discharge of his or her duties and within the scope of his or her employment. Such proper discharge and scope shall be determined by a majority vote of a panel consisting of the Commissioner of Police, the Village Administrator and the Trustee-liaison to the Police Department.
Fact Pattern:
1) Town Councilmember brought a breach of contract claim against the town seeking the reimbursement of legal expenses that he accrued defending Federal Criminal Prosecution. The case went to trial and he was acquitted. Is he automatically entitled to reimbursement? (this case is on page 3 of the outline) a. NOPE! Unless there is a statute, ordinance, resolution or anything approaching the formalities of a negotiated, pre-existing agreement of indemnification, defense or legal expenses, a town employee is not entitled to reimbursement. (Zimmer v. Town of Brookhaven, 247 A.D.2d 109 (2d Dep’t 1998) 2) Plaintiff brings a Section 1983 action against members of a town board and an official in the building department. (this case is not discussed elsewhere in the outline) a. Here, the members of the town board were entitled to absolute immunity since the actions they took were within the “sphere of legitimate legislative activities.” Since the complaint attacks actions that were legislative, they are entitled to absolute immunity. Also, the Building Department Official was entitled to qualified immunity since the actions he took did not “clearly violate established constitutional rights which a reasonable person would have been aware.” (24 Franklin Ave. R.E Corp. v. Cannella, 139 A.D.3d 717 (2d Dep’t 2016)). 3) After a Zoning Board of Appeals meeting, for the application of a variance, a disgruntled resident brings an action to recover damages for libel and slander based on comments made during the appeal. The Plaintiff tries to recover said damages from a third party who made the comments during the meetings. Can they recover for damages? (this case is discussed on page 5 & 6 of the outline) a. NOPE. Because a Zoning Board of Appeals meeting is a quasi-judicial proceeding, and in the advancement of public policy of encouraging participation, the citizen was entitled to absolute immunity. Allan and Allan Arts Ltd. V. Rosenblum, 201 A.D.2d 136, 140 (2d Dep’t 1994). 4) A petitioner applies and is denied an application for a zoning variance. The petitioner appeals and tries to recover monetary damages. Is he allowed to recover? (this case is not discussed elsewhere in the outline) NOPE. The Second Department has ruled multiple times that monetary damages are not recoverable against the members of the Zoning Board of Appeals. The courts have regularly ruled that the a board’s determination is “discretionary and quasi-judicial in nature,” and thus the board members are immunized from suit. Moundroukas v. Foley, 472 N.Y.S.2d 32