Town of Haverstraw, NY
Rockland County
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Table of Contents
Table of Contents
Chapter 10: Defense and Indemnification
[HISTORY: Adopted by the Town Board of the Town of Haverstraw 12-12-1994 as L.L. No. 7-1994. Amendments noted where applicable.]
GENERAL REFERENCES
Town Attorney — See Ch. 6.

§ 10-1 Definitions.

As used in this chapter, unless the context otherwise requires, the following terms shall have the meanings indicated:
EMPLOYEE
Any person holding a position by election, appointment or employment in the service of the town, whether or not compensated or a volunteer expressly authorized to participate in a town-sponsored volunteer program, but shall not include an independent contractor. The term "employee" shall include a former employee, his/her estate or his/her judicially appointed personal representative.

§ 10-2 Defense authorized; procedure.

A. 
Upon compliance by the employee with the provisions of § 10-4 of this chapter, the town shall provide for the defense of the employee in any civil action or proceeding in any municipal, state or federal court, including an action or proceeding which is brought to enforce a provision of § 1981 or 1983 of Title 42 of the United States Code, arising out of any alleged act or omission which occurred while the employee was acting within the scope of his or her public duties. This duty to provide for a defense shall not arise where such civil proceeding is brought by or on behalf of the town.
B. 
Representation.
(1) 
Subject to the provisions set forth in § 10-2A of this chapter, the employee shall be entitled to be represented by the Town Attorney, except that the employee shall be entitled to be represented by private counsel in any civil judicial proceeding only as follows:
(a) 
Whenever 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 by reason of a conflict of interest or a violation or possible violation of the cannon of ethics or the code of professional responsibility.
(b) 
Whenever 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 inadvisable due to the unavailability of resources in the Office of the Town Attorney.
(c) 
Whenever a court of competent jurisdiction, upon proper motion or by a special proceeding, determines that a conflict of interest exists and that the employee is entitled to be represented by private counsel.
(2) 
Where an employee is entitled to representation by private counsel pursuant to Subsection B(1) (a), (b) or (c) hereof, the Town Attorney shall notify the employee in writing of such determination and shall so certify in a communication to the Town Supervisor and the Town Board. The Supervisor and Town Board shall approve or disapprove such representation by private counsel. Upon such approval, the Supervisor and Town Board shall designate the private counsel to be retained and the terms and conditions thereof subject to budgetary appropriations. Upon designation by the Supervisor and Town Board, the employee shall be notified in writing of such determination. Reasonable attorneys' fees approved in advance by the Town Board and litigation expenses shall be paid by the town to such private counsel from time to time during the pendency of the civil action or proceeding, subject to budgetary appropriations.
C. 
Where the employee delivers process and a written request for a defense to the Town Attorney as required by § 10-4 of this chapter, then the Town Attorney shall take all necessary steps 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.

§ 10-3 Indemnification authorized; procedure.

A. 
The town shall indemnify and save harmless its employees in the amount of any judgment obtained against such employee in any municipal, state or federal court, or in the amount of any 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 and within the scope of his or her public employment or duties. The duty to indemnify and save harmless prescribed by this subsection shall not arise where the injury or damage resulted from acts outside the scope of the employee's public employment or duties as an employee of the Town of Haverstraw or from intentional wrongdoing or recklessness on the part of the employee.
B. 
Where an employee is represented by private counsel, any proposed settlement which may be subject to indemnification by the town shall be submitted by the outside counsel to the Town Attorney and to the Town Supervisor. The Town Attorney shall review such proposed settlement and shall give his/her opinion as to whether, in his/her judgment, the settlement is in the best interests of the town to the Town Board. After approval by the Town Board, the settlement shall be paid by the Town of Haverstraw. The town shall not be liable to indemnify or save harmless an employee with respect to any settlement not reviewed and approved by the Town Attorney and authorized by the Town Board.
C. 
Where an employee is represented by the Town Attorney, any proposed settlement which may be subject to indemnification by the town shall be submitted by the Town Attorney to the Supervisor. The Supervisor shall review such proposed settlement and shall give his/her recommendation as to whether, in his/her judgment, the settlement is in the best interest of the town to the Town Board. After approval by the Town Board, the settlement shall be paid by the Town of Haverstraw. Nothing in this subsection shall be construed to authorize the town to indemnify or save harmless an employee with respect to a settlement not reviewed and approved by the Supervisor and Town Board.
D. 
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.
E. 
Within 10 days of entry of a final judgment against an employee represented by private counsel, a copy of such judgment, along with a written statement recommending either payment of the judgment or prosecution of an appeal, shall be submitted by the private counsel to the Town Attorney, by certified or registered mail, and a protective notice of appeal shall be filed by private counsel with the appropriate court; whereupon the Town Board shall authorize either payment of the judgment or prosecution of an appeal, whichever may be in the best interests of the town. Where payment of the judgment is authorized, it shall be paid by the Town of Haverstraw, pursuant to the procedures of the Town of Haverstraw. Where prosecution of any appeal is authorized, reasonable attorneys' fees and litigation expenses, authorized in advance by the Town Board, shall be paid by the town to such private counsel from time to time during the pendency of the appeal, subject to budgetary appropriation.
F. 
Within 10 days of entry of a final judgment against an employee represented by the Town Attorney, a copy of such judgment, along with a written statement recommending either payment of the judgment or prosecution of an appeal, shall be submitted by the Town Attorney to the Supervisor, and, if appropriate, a protective notice of appeal shall be filed by the Town Attorney with the appropriate court; whereupon the Town Board shall authorize either payment of the judgment or prosecution of an appeal, whichever may be in the best interests of the town. Where payment of the judgment is authorized, it shall be paid by the Town of Haverstraw, pursuant to the procedures of the Town of Haverstraw. Where prosecution of any appeal is authorized, reasonable attorneys' fees and litigation expenses, authorized in advance by the Town Board, shall be paid by the pendency of the appeal, subject to budgetary appropriation.

§ 10-4 Conditions and restrictions.

A. 
The duty to defend or indemnify and save harmless prescribed by this chapter shall be conditioned upon:
(1) 
Delivery by the employee to the Town Attorney at the office of the Town Attorney of the original or a copy of any summons, complaint, process, notice, notice of claim, demand or pleading within five days after said employee is served with such document and prior to the entry of any default judgment; together with
(2) 
A written request from the employee for a defense; and
(3) 
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 and in the prosecution of any appeal.
B. 
Notwithstanding anything contained in this chapter, the duty to defend or indemnify and save harmless any employee, as prescribed by this chapter, shall be further conditioned upon the full and complete cooperation of the employee at each and every stage of each and every proceeding which may occur. The full and complete cooperation of the employee shall include, but not be limited to, providing oral and/or written statements to the Town Attorney, sworn or affirmed, where required, by the Town Attorney or such persons as the Town Attorney may designate; appearance by the employee at such designated times and places for such statements; full, truthful and complete cooperation in investigations and testimony and discussions and meetings and actions and proceedings and hearings and trials; or such other times and places or activities as the Town Attorney determines are needed to protect the interests of the Town of Haverstraw.

§ 10-5 Employees affected.

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.

§ 10-6 Effect on notice of claims.

This chapter shall not in any way affect the obligation of any claimant to give notice of claim to the town under any provision of law.

§ 10-7 Effect on insurance rights.

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.

§ 10-8 Applicability of provisions.

The provisions of this chapter shall apply to all actions and proceedings instituted on or after the effective date thereof.

§ 10-9 Construal of provisions.

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 other level of government 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, county, state or federal statutory or common law.

§ 10-10 Severability.

If any clause, sentence, paragraph or section shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder thereof but shall be confined in its operation to the clause, sentence, paragraph or section directly involved in the controversy in which such judgment shall have been rendered.

§ 10-11 Effective date.

This local law shall become effective on December 13, 1994.

§ 10-12 Indemnification of police officers.

[Added 3-26-2001 by L.L. No. 10-2001]
The Town of Haverstraw shall provide for the defense of any civil action or proceeding brought against a duly appointed police officer of the town and shall indemnify and save harmless such police officer from any judgment of a court of competent jurisdiction whenever such action, proceeding or judgment is for punitive or exemplary damages, arising out of a negligent act or other tort of such police officer committed while in the proper discharge of their duties and within the scope of their employment. The town is hereby authorized and empowered to purchase insurance to cover the cost of such defense and indemnification.