[HISTORY: Adopted by the Town Board of the Town of Parma 6-14-1982. 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 of Parma, whether or not compensated,
but shall not include an independent contractor. The term "employee"
shall include a former employee, his estate or a judicially appointed
personal representative.
A.
Subject
to the conditions set forth in § 18 of the Public Officers
Law, the employee shall be entitled to be represented by the Attorney
for the town except where counsel is provided pursuant to a policy
of insurance under which the town and/or employee is named as an insured
and counsel is provided to the town and/or its employee pursuant to
such policy of insurance. This duty to provide for a defense shall
not arise where such civil action or proceeding was brought by or
on behalf of the Town of Parma. The determination of the Attorney
for the town that an act or omission occurred or did not occur within
the scope of the public employment or that an allegation in a pleading
alleging such conduct within the scope of employment is a bona fide
allegation shall be final. The Attorney for the town may properly
ascertain that a pleading alleging conduct within the scope of employment
is not bona fide, and that the defendant-employee is thereby not entitled
to the protection of this section.[1]
B.
The
employee shall be entitled to representation by private counsel of
his or her choice in any civil judicial proceeding whenever the Attorney
for the town determines, based upon his investigation and review of
the fact and circumstances of the case, that representation by the
Attorney for the town would be inappropriate under the provisions
of this chapter or otherwise. The Attorney for the town shall notify
the employee in writing of such determination that the town is not
required to provide representation and/or that the employee is entitled
to be represented by private counsel of his choice. The Attorney for
the town may require, as a condition to payment of the fees and expenses
of such representation, that appropriate groups of such employees
be represented by the same counsel. If the employee or group of employees
is entitled to representation by private counsel under the provisions
of this chapter, the Attorney for the town shall so certify to the
Town Board. Reasonable attorney fees 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 certification
that the employee is entitled to representation under the terms and
conditions of this section by the head of the department, commission,
division, office or agency in which such employee is employed and
upon the audit and warrant of the Town Supervisor and Town Board.
Any dispute with respect to representation of multiple employees by
a single counsel or the amount of litigation expenses or the reasonableness
of attorney fees shall be resolved by the Town Board, whose determination
in such matters shall be final.[2]
C.
Where the employee delivers process and a request for a defense to the Town Clerk as required by § 35-4 of this chapter, the town shall take the necessary steps, including the retention of private counsel 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 of the town to provide for a defense.
A.
The
town shall indemnify and save harmless its employees in the amount
of any judgment obtained against such employees in any state or federal
court or in the amount of any settlement of a claim to the extent
that insurance proceeds from policies insuring the town and/or the
employee do not cover such judgment or settlement, provided that the
act or omission from which such judgment or settlement arose occurred
while the employee was acting in good faith, without malice and within
the scope of his public employment or duties.
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 section, the Supervisor shall certify such settlement and
submit such settlement and certification to the Attorney for the town.
The Attorney for the town shall review such proposed settlement as
to form and amount and give his approval if, in his judgment, the
settlement is in the best interest of the town. 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 Attorney for the town.
C.
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.
D.
Upon
entry of a final judgment against an employee, or under 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,
and, if not inconsistent with the provisions of this section, such
judgment or settlement shall be certified for payment by the Supervisor.
If the Attorney for the town concurs in such certification, the judgment
or settlement shall be paid upon the audit and warrant of the Town
Board. The determination of the Supervisor or Attorney for the town
that an employee is entitled to indemnification of a specific judgment
or settlement under the provisions of this section shall be final.
The duty to defend or indemnify and save harmless provided by
this chapter shall be conditioned upon delivery to the Town Clerk
or his or her assistant, at the Town Hall, by the employee, of the
original or a copy of any summons, complaint, process, notice, demand
or pleading within five days after he is served with such document.
Such delivery shall be deemed a request by the employee that the town
provide for his defense pursuant to this chapter. 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, shall
also be conditions for the defense or indemnity provided in this chapter.
The benefits of this chapter shall inure only to employees as defined in § 35-1 of this chapter 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 Worker's Compensation Law.
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 provisions of this chapter shall apply to all actions and
proceedings pending on the effective date hereof or hereafter instituted.
Except as otherwise specifically provided in this chapter, the
provisions of this chapter shall not be construed in any way to impair,
alter, limit, 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 the town, state or federal statutory or common law.
