[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.
TOWN
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.
A.
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.
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 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.
C.
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.
A.
The duties to defend or indemnify and save harmless provided in this
chapter shall be contingent upon:
(1)
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
(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 Town based upon the same act or omission, and in the prosecution
of any appeal.
B.
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.
