[HISTORY: Adopted by the Town Board of the Town of Highlands 8-11-2008 by L.L. No. 3-2008. Amendments noted where applicable.]
Ethics — See Ch. 11.
The purpose of this chapter is to provide legal and financial protection for those individuals serving the Town of Highlands 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. By enactment of this chapter, the Town of Highlands does not intend to limit or otherwise abrogate any existing rights or responsibility of the Town of Highlands or its employees with regard to indemnification or legal defense.
As used in this chapter, the following terms shall have the meanings indicated:
- Any person holding a position by election, appointment or employment in the service of the Town, but shall not include a volunteer, any person not compensated for his services or an independent contractor. The term "employee" shall include a former employee, his estate or judicially appointed personal representative and shall also include a member of any board or agency appointed by the Town Board.
- The Town of Highlands.
Upon compliance by the employee with the provisions of § 6-6 of this chapter, the Town 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. Such defense shall not be provided where such civil action or proceeding is brought by or on behalf of the Town.
Subject to the conditions set forth in this chapter, the employee shall be represented by the Town Attorney, the Attorney for the Town or an attorney employed or retained by the Town or its insurance carrier for the defense of the employee. Except where covered by an insurance policy carried by the Town, reasonable attorney's fees and litigation expenses shall be paid by the Town to the Attorney for the Town or such attorney employed or retained, from time to time, during the pendency of the civil action or proceeding subject to certification by the Town Supervisor that the employee it 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 Town. Any dispute with respect to representation of an employee i) on a particular matter or ii) of multiple employees by the Town Attorney, Attorney for the Town or 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 Town Attorney or the Town Supervisor as required by § 6-6 of this chapter, the Town Attorney or the Supervisor, as the case may be, shall take the 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 any question relating to the obligation of the Town to provide a defense.
The Town 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; 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 settlement by the Town Board or its insurance company. 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 and shall not be applicable to an award for punitive damages.
The determination of an issue of whether or not an employee was acting within the scope of his public employment or duties at the time of the occurrence, act or omission giving rise to a claim shall be made by the Town Board, on advice from the Town Attorney or Attorney for the Town. Any such determination shall be subject to review by a court of competent jurisdiction in the manner prescribed by law.
The duties to defend and indemnify provided in this chapter shall be contingent upon:
Delivery to the Town Attorney or, if none, to the Town Supervisor 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
The full cooperation of the employee in the defense of such action or proceeding and defense of any action or proceeding against the Town 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 Town provide for his defense pursuant to this chapter, unless the employee shall state in writing that a defense is not requested.
Notwithstanding anything to the contrary contained herein, there shall be no duty of the Town to defend or indemnify any employee unless the Town Board finds:
In the event the Town assumes the duty of defense and in the event a court determines that the employee acted in bad faith or with malice or in a wanton or willful manner so as to cause the claim or was not acting in a bona fide discharge of his or her municipal duties, the employee shall reimburse the Town for all expenses incurred for defense of claims arising out of the alleged civil action or civil proceeding. Upon such finding by a court, the Town shall have no duty to satisfy any judgment or claim against the employee, and in the event the Town has satisfied or is ordered to satisfy said judgment or claim, the employee must reimburse the Town for any sum paid for the said satisfaction.
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.
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.
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 Town 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 provisions of this chapter shall apply to all actions and proceedings specified herein which have been commenced, instituted or brought on or after the effective date of this chapter.