[HISTORY: Adopted by the Town Board of the Town of Delaware 4-10-1986 by L.L. No. 1-1986. Amendments noted where applicable.]
As used in this chapter, unless the context otherwise requires:
- Any person holding a position by election, appointment or employment in the service of the Town of Delaware, a volunteer expressly authorized to participate in a publicly sponsored volunteer program, 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 Town of Delaware, and where the following have agreed by resolution to confer the benefits of this chapter upon their employees and be responsible for the costs incurred thereby, any other public benefit corporation, public improvement, special district, public authority, commission or agency organized by or under the authority of the Town of Delaware.
Upon compliance by the employee with the provisions of § 17-3 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 or administrative agency 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 at the behest of the Town.
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 Board shall employ or retain any attorney for the defense of the employee whenever: 1) the Town Attorney determines, based upon an investigation and review of the facts and circumstances of the case, that representation by the Town Attorney would be inappropriate; or 2) 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 the pendency of the civil action or proceeding, subject to certification by the Town Board 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.
Where the employee delivers process and a request for defense to the Town Attorney or Supervisor as required by § 17-3 of this chapter, the Town Attorney, or an attorney retained by the Board under the terms and conditions provided in Subsection B of this section, shall take the necessary steps 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 duties to defend or indemnify and save harmless provided in this chapter shall be contingent upon:
Delivery to the Town Attorney or Supervisor of the original or a copy of any summons, complaint, process, notice, demand or pleading within 10 days after he is served with such document; and
The full cooperation of the employee in the defense of such action or proceeding, and in 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 or to indemnify and save harmless pursuant to this chapter, unless the employee shall state in writing that a defense or indemnity is not requested.
The Town shall indemnify and save harmless any employee in the amount of any judgment obtained against such employee in a state or federal court or administrative agency or in the amount of any settlement of a claim, provided the act or omission from which such judgment or claim 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 Board. The duty to indemnify and save harmless shall not apply to any injury or damage which resulted from the intentional wrongdoing or recklessness of the employee or to punitive or exemplary damages, fines, penalties or money recovered from an employee pursuant to § 51 of the General Municipal Law. The duty to indemnify and save harmless shall apply to an employee acting within the scope of his public employment and duties who 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 or of any administrative agency.
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 benefits of this chapter shall be extended to an employee of a negotiating unit for which an agreement has been negotiated pursuant to Civil Service Law Article 14, only if such agreement expressly so provides.
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 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.