[HISTORY: Adopted by the Town Board of the Town of Fishkill 8-2-1982 by L.L. No. 3-1982; amended in its entirety 4-19-2000 by L.L. No. 3-2000. Subsequent amendments noted where applicable.]
As used in this chapter, unless the context otherwise requires, the following terms shall have the meanings indicated:
- Any person holding a position by election, appointment or employment in the service of the Town, notwithstanding when the alleged improper act occurred or is alleged to have occurred and whether or not the employee is compensated, but shall not include an independent contractor. The term "employee" shall include a former employee, his or her estate or judicially appointed personal representative.
- The Town of Fishkill.
- TOWN ATTORNEY
- The Town Attorney, if one is appointed, or the attorney(s) to the Town in the absence of appointment of a Town Attorney.
Upon compliance by the employee with the provisions of § 12-4 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 action arising out of any alleged act or omission which occurred or allegedly occurred while the employee was acting or in good faith was purporting to act within the scope of his or her public employment and duties or which is brought to enforce a provision of §§ 1981 through 1988 of Title 42 of the United States Code. The duty to provide for a defense shall not arise where such civil action is brought by, at the behest or on behalf 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 Town Board shall employ or retain an attorney for the defense of the employee whenever the Town does not have a Town Attorney, the Town Board determines that representation of the employee by the Town Attorney would be inappropriate or 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 employed or retained attorney from time to time during the pendency of the civil action or proceeding, subject to the approval of the Town Board. 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 the representation of multiple employees by the Town Attorney or by an attorney employed or retained for such purposes, or the amount of litigation expenses, or the reasonableness of attorneys' fees, shall be resolved by the court upon motion by way of special proceeding.
Where the employee delivers process and a request for a defense to the Town Supervisor, as required by § 12-4 of this chapter, the Town Board 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 pertaining to the obligation to provide for a defense.
Subject to the conditions set forth in this chapter, the Town shall indemnify and save harmless its employees in the amount of any judgment in any state or federal court or in any administrative action, or in the amount of any settlement of any claim brought against such employee, provided that the employee has complied with the provisions of § 12-4 of this chapter, and further provided that the act or omission from which such judgment or settlement arose occurred while the employee was acting or in good faith purporting to act within the scope of his or her public employment and duties. In the case of a settlement, the duty to indemnify and save harmless shall be further conditioned upon the approval of the amount of settlement by the Town Board.
Except as otherwise prescribed by law, 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.
Any proposed settlement which may be subject to indemnification by the Town must be submitted to the Town Attorney who shall, after reviewing such proposal as to form and content and after consultation with and certification of such proposed settlement by the head of the department, commission, division, office or agency wherein the employee is employed, give his or her recommendation to the Town Board. If the Town Board believes it is in the best interest of the Town to accept such settlement, it shall give its approval thereto. Nothing in this section shall be construed to authorize the Town to indemnify or save harmless an employee with respect to a settlement not so reviewed and approved by the Town Board.
Upon entry of a final judgment against the employee, or upon the settlement of the claim, the employee shall serve a copy of such judgment or settlement, personally or by certified or registered mail within 30 days of the date of entry or settlement, upon the Town Supervisor; and if not inconsistent with the provisions of this section, the amount of such judgment or settlement shall be paid by the Town.
The duty to defend or indemnify and save harmless provided in this chapter shall be conditioned upon:
Delivery to the Town Supervisor of the original or a copy of any summons, complaint, process, notice, demand or pleading within 10 days after he or she is served with such document; and
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; and
A finding by the Town Board that the alleged action or omission on the action which is brought to enforce a provision of U.S.C. §§ 1981 through 1988 occurred while the employee was acting within the scope of his or her public employment and in the discharge of his or her duties.
Such timely 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.
Nothing in this chapter shall authorize the Town to indemnify or save harmless an employee with respect to punitive or exemplary damages, fines or penalties, money recovered from an employee pursuant to Article 7-A of the State Finance Law or § 51 of the General Municipal Law or property forfeited pursuant to § 1311 of the Civil Practice Laws and Rules; provided, however, that the Town shall indemnify and save harmless its employees in the amount of any costs, attorneys' fees, damages, fines or penalties which may be imposed by reason of an adjudication that an employee, acting within the scope of his or her public employment or duties, has, without any willfulness or intent on his or her part, violated a prior order, judgment, consent decree or stipulation of settlement in any court of this state or of the United States.
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.
The benefits of this chapter shall 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 provision of the Workers' Compensation Law.
This chapter shall not in any way waive, modify or affect the obligation of any claimant to give notice to the Town under § 50-e of the General Municipal Law or any other provision of law.
Except as otherwise 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.
Withholding of defense and indemnification. In the event that the act or omission upon which the court proceeding against the employee is based was, or is also, the basis of a disciplinary proceeding by the Town against the employee, defense and indemnification by the Town may be withheld until such disciplinary proceeding has been resolved. If the resolution of the disciplinary proceeding exonerated the employee as to such act or omission, defense and indemnification shall be provided to the employee.
The provisions of this chapter shall apply to all actions and proceedings specified herein upon the effective date hereof or thereafter instituted.