[HISTORY: Adopted by the Town Board of the Town of Sweden 12-14-2004[1]. Amendments noted where applicable.]
[1]
Editor's Note: This resolution superseded former Ch. 11, Defense and
Indemnification, adopted 11-7-1985 by L.L. No. 1-1985.
As used in this chapter, unless the context otherwise requires, the
following terms shall have the meaning indicated:
Any person holding a position by election, appointment or employment
in the service of the Town but shall not include a volunteer or an independent
contractor. The term "employee" shall include a former employee, his estate
or judicially appointed personal representative.
The Town of Sweden.
A.
Upon compliance by the employee with the provisions of § 11-3 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 arising out of any alleged act or omission which occurred or is alleged in the complaint to have occurred while the employee was acting or in good faith purporting to act within the scope of his/her 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.
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.
(1)
The Town Board shall employ or retain an attorney for
the defense of the employee whenever:
(a)
The Town does not have a Town Attorney;
(b)
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
(c)
A court of competent jurisdiction determines that a conflict
of interest exists and that the employee cannot be represented by the Town
Attorney.
(2)
Reasonable attorney 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 to 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 the Town Supervisor, as required by § 11-3 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 questions relating to the obligation of the Town to provide a defense.
The duties to defend 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/she is served with such document and the full cooperation
of the employee in the defense of such 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.
A.
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.
B.
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.
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.
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.
