[HISTORY: Adopted by the Town Board of the Town of Fallsburg at time of adoption of Code (See Ch. 1, Art. IV). Amendments noted where applicable.]
Officers and employees — See Ch. 48.
Editor's Note: This ordinance repealed former Ch. 7, Defense and Indemnification, adopted 5-20-1980 by Ord. No. 80-1 (Ch. 4 of the 1971 Code).
The purpose of this chapter is to confer the benefits of § 18 of the Public Officers Law and provide legal and financial protection for those individuals serving the Town of Fallsburg from losses which may result from legal actions which may be brought against them in their individual capacity for actions taken while in the performance of their official duties and responsibilities. In enacting this chapter, the Town Board finds that other towns in the State of New York have enacted similar provisions for the legal and financial security of their officers and employees and further finds that such security is also required for Town of Fallsburg personnel. By enactment of this chapter, the Town Board does not intend to limit or otherwise abrogate any existing right or responsibility of the Town of Fallsburg or its employees with regard to indemnification or legal defense. It is solely the intent of this chapter to provide similar coverage for local employees as is presently provided for employees of other towns, so as to continue to attract qualified individuals to local government service.
As used herein, the following words shall have the meanings below set forth:
- Any person holding a position by election, appointment or employment in the service of the Town, 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 Fallsburg.
Upon compliance by the employee with the provisions of § 7-8 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 or 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. The Town shall indemnify and save harmless its employees in the amount of any judgment obtained against such employee, or in the amount of any settlement of a claim, provided that the act or omission from which such judgment or claim arose occurred while the employee was acting or, in good faith, purporting to act within the scope of his or her public employment or duties; provided further that in the case of a settlement the duty to indemnify and save harmless shall be conditioned upon the approval of the amount of settlement by the Town Board.
The Town shall make a determination of whether the employee was acting or, in good faith, purporting to act within the scope of his or her employment or duties, as soon as practicable after presentation of suit. Such determination shall be made after a full investigation into the allegations of the complaint by the Town's attorney, with the assistance of such other individuals as may be reasonably necessary. If the Town determines that the employee was not acting within the scope of his or her employment or duties, the Town shall bear no legal expense on behalf of such employee, nor shall it indemnify the employee for any judgment obtained against him or her; further, if, after an initial determination that the employee was acting within the scope of his or her employment, the Town determines that the employee has misled the Town or has otherwise acted in bad faith during the pendency of the action or proceeding and the Town determines that the employee was not, in fact, acting or purporting to act within the scope of his or her employment or duties, the Town shall bear no legal expense on behalf of such employee, nor shall it indemnify the employee for any judgment obtained against him or her.
In accordance with the provisions of § 50-j, Subdivision 6, of the General Municipal Law, the Town 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 his duties and within the scope of his or her employment. The determination of whether any such police officer properly discharged his or her duties within the scope of his or her employment shall be made in accordance with the provisions of Subsection A(1) of this section.
Subject to the conditions set forth in this chapter, the employee shall be represented by the Town's 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 an attorney or the Town Board determines, based upon its investigation and review of the facts and circumstances of the case, that representation by the Town's 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's attorney. Reasonable attorney's 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 Supervisor 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 of multiple employees by the Town's 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.
Where the employee delivers process and a request for a defense to the Town Supervisor as required by § 7-8 of this chapter, the Supervisor shall take the necessary steps, including the retention of an attorney under the terms and conditions provided in § 7-3B of this chapter, on behalf of the employee to avoid entry of a default judgment, pending resolution of any question relating to the obligation of the Town to provide a defense.
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.
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.
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.
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.
Restrictions shall be as follows:
Delivery to the Town Supervisor of the original or a copy of any summons, complaint, process, notice, demand or pleading within five days after the employee 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, unless the employee shall state, in writing, that a defense is not requested.
The full cooperation of the employee in the defense of such action or proceeding and defense of any action or proceeding against the Town based upon the same act or omission and in the prosecution of any appeal.
The provisions of this chapter shall apply to all actions and proceedings which are pending on the effective date of this chapter or are commenced, instituted or brought on or after the effective date of this chapter.