[HISTORY: Adopted by the Town Board of the Town of Busti 2-24-1992 by L.L. No.
1-1992 (Art. 14 of the 1989 Code). Amendments noted
where applicable.]
As used in this chapter, unless the context requires otherwise,
the following terms shall have the meanings indicated:
Includes 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 his judicially appointed personal representative. Members
of all Town boards, such as the Busti-Lakewood Recreation Commission,
Board of Assessment Review, Planning Board and the Zoning Board of
Appeals, shall not be considered volunteers, and the Town Attorney
shall not be considered an independent contractor.
The Town of Busti Town Board.
A.
Upon compliance by the employee with the provisions of § 32-3 of this chapter, the Town shall provide for the defense of the employee in any criminal or civil action or proceeding in any state or federal court, including any action to enforce a provision of any civil rights statute of the State of New York or of the United States, arising out of any alleged act or omission which occurred or is alleged in the information or complaint to have occurred while the employee was acting, or in good faith purporting to act, within the scope of his or her public employment or duties. Such defense shall not be provided where such action or proceeding is brought by or on behalf of the Town pursuant to authorization of the Town Board.
B.
Subject to the conditions set forth in this chapter, the employee
shall be represented by the Town Attorney or an attorney employed
or retained by the Town for the defense of the employee. The Town
Board shall employ or retain an attorney for the defense of the employee
whenever the Town does not have a Town Attorney; whenever the Town
Board determines, based upon its investigation and review of the facts
and circumstances of the case, that representation by the Town Attorney
would be inappropriate; or whenever a court of competent jurisdiction
determines that a conflict of interest exists and that the employee
cannot be represented by the Town Attorney. Reasonable attorney's
fees and litigation expenses shall be paid by the Town to such attorney
employed or retained, from time to time, during pendency of the civil
action or proceeding, subject to certification by the Town Supervisor
that the employee is 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 multiple
employees by the Town Attorney or by 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.
C.
Where the employee delivers process and a request for a defense to the Town Attorney or, if none, to the Town Supervisor, as required by this section 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 or provide a defense.
The duties to defend and indemnify and save harmless provided
in this chapter shall be contingent upon:
A.
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 the employee is served with
such document. Such delivery shall be deemed a request by the employee
that the Town provide for his or her defense pursuant to this chapter,
unless the employee shall state, in writing, that a defense is not
requested; and
B.
The full cooperation of the employee in the defense of such action
or proceeding and in the defense of any action or proceeding against
the Town based upon the same act or omission and in the prosecution
of any appeal.
A.
The Town shall indemnify and save harmless any employee whose defense
was provided pursuant to this chapter in the amount of any judgment
obtained against such employee, including any fine, or in the amount
of any settlement or compromise approved by the Town Board. The Town
shall not indemnify and save harmless the employee:
(1)
Where the injury, damage or wrongful act has been determined by a
court of competent jurisdiction to have occurred while the employee
was not acting within the scope of his public employment or duties.
(2)
Where the injury or damage resulted from intentional wrongdoing or
recklessness on the part of the employee.
(3)
For any punitive or exemplary damages or penalties.
(4)
For money recovered from the employee pursuant to § 51
of the General Municipal Law.
B.
The claim or compromise settlement which may be subject to indemnification
by the Town shall not be paid unless it is presented to and approved
by the Town Board.
C.
Upon entry of final judgment against the employee or upon settlement
or compromise of a claim as approved by the Town Board, the employee
shall cause to be served upon the Town Supervisor a copy of such judgment
or settlement, personally or by certified or registered mail, within
10 days of the date of entry or settlement. Such judgment or settlement
shall be processed and paid in the same manner that other judgments
or settlements of claims are paid by the Town.
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 right and obligations of any insurer under
any policy of insurance.
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 employee
of the Town or any right to defense and 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.
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.
