[HISTORY: Adopted by the Town Board of the
Town of New Castle 2-11-1980 by L.L. No. 2-1980. Amendments noted where
applicable.]
The Town Board of the Town of New Castle has
determined that in order to ensure the continued and future service
of responsible and capable individuals as officials and employees
of the Town of New Castle, it is necessary and proper to assure that
they are afforded protection against individual liability for actions
taken in good faith within the scope of their duties and employment.
The title of this chapter shall be "Indemnification
of Public Employees."
As used in this chapter, the following term
shall have the meaning indicated:
Any person holding a position by election, appointment or
employment in the service of the town, whether or not compensated,
or a volunteer, but shall not include an independent contractor.
A.
The town shall provide for the defense of an employee
in any civil action or proceeding in any state or federal court or
administrative action, including but not limited to a proceeding brought
to enforce a provision of 42 U.S.C. § 1981 or 1983, arising
out of any alleged act or omission which occurred or is alleged in
the complaint to have occurred while the employee was acting in good
faith within the apparent scope of his public employment or duties.
This duty to provide for a defense shall not arise where such civil
action or proceeding is brought by or on behalf of the town.
[Amended 11-9-1999 by L.L. No. 21-1999]
B.
Subject to the conditions set forth in Subsection A above, the employee shall be entitled, at the option of the Town Board, to be represented by private counsel of his choice or counsel selected by the Town Board in any civil, judicial or administrative action or proceeding. The town may require, as a condition to payment of the fees and expenses of such representation, that appropriate groups of employees be represented by the same counsel. Reasonable attorneys' fees and litigation expenses shall be paid by the town to authorized private counsel from time to time during the pendency of the civil action or proceeding, subject to the usual audit. Any dispute with respect to representation of multiple employees and any other municipal defendants by a single counsel or the amount of litigation expenses or the reasonableness of attorneys' fees shall be resolved by the Town Board, which decision shall be final.
If the claim or cause of action alleged against
the employee is within the coverage of any liability insurance policy
issued to the town, the employee shall accept representation by counsel
selected in accordance with the terms of such policy.
[Amended 11-9-1999 by L.L. No. 21-1999]
A.
The town shall indemnify and save harmless its employees,
in the amount of any judgment, fine or levy obtained against such
employees or in the amount of any authorized settlement of a claim,
provided that the act or omission from which such judgment or settlement
arose occurred while the employee was acting in good faith within
the apparent scope of his public employment or duties; the duty to
indemnify and save harmless prescribed by this provision shall not
arise where the injury or damage resulted from intentional wrongdoing
or recklessness on the part of the employee.
B.
An employee represented by private counsel shall cause
to be submitted to the Town Board any proposed settlement which may
be subject to indemnification by the town, and, if not inconsistent
with the provisions of this chapter, the Town Board shall give its
approval if in its judgment the settlement is in the best interests
of the town. Nothing in this chapter 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.
C.
Upon entry of a final judgment against an employee
or upon the settlement of the claim, the employee shall cause to be
served 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 Supervisor's office, and, if not inconsistent with the
provisions of this chapter, such judgment or settlement shall be certified
for payment.
D.
The town shall also indemnify and save harmless its
employees in the amount of any punitive damages in accordance with
the following procedure and such additional procedures as may be established
by the Town Attorney:
(1)
In the event of a final judgment of punitive damages
against the employee, the employee shall serve copies of such judgment,
personally or by certified or registered mail within 10 days of the
date of entry, upon the Town Attorney and upon the Town Clerk on behalf
of the Town Board. The Town Board shall meet as soon as practicable
to review, make findings and determine if all the following have been
met and, if so met, shall appropriate the funds necessary to pay such
punitive damages:
(a)
The judgment of punitive damages is based on
an act or omission of an employee acting within the scope of his/her
employment;
(b)
At the time of the action or omission giving
rise to the liability, the employee acted without recklessness, without
maliciousness and without gross negligence and otherwise within the
standards required for employees holding comparable positions within
the town;
(c)
At the time of the act or omission, the employee
acted in good faith and in the best interests of the town; and
(d)
At the time of the act or omission, the employee
did not willfully violate a clearly established provision of law or
town policy.
(2)
Except as otherwise required by federal or state law,
deliberations by the Town Board shall be held in executive session
and the findings and determinations of the Town Board shall remain
confidential.
The duty to defend or indemnify and save harmless
prescribed by this chapter shall be conditioned upon delivery to the
Town Attorney by the employee 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 pursuant
to this chapter.
A.
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, and no provision of this chapter shall be construed
to affect, alter or repeal any provision of the Workers' Compensation
Law.
B.
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.
C.
The provisions of this chapter shall apply to all
actions and proceedings pending upon the effective date hereof or
hereafter instituted.
Except as otherwise specifically provided herein,
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/or indemnification provided for any
governmental officer or employee by, in accordance with or by reason
of any other provision of town, state or federal statutory or common
law.
This chapter shall become effective upon filing
with the Secretary of State.
