[HISTORY: Adopted by the Town Board of the
Town of Binghamton 7-8-1980 by L.L. No. 3-1980 (Ch. 10 of the 1969
Code). Amendments noted where applicable.]
GENERAL REFERENCES
Code of Ethics — See Ch. 21.
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, but shall not include a volunteer,
any person not compensated for his services or an independent contractor.
The term "employee" shall include a former employee, his estate or
judicially appointed personal representative.
The Town of Binghamton.
A.
Upon compliance by the employee with the provisions of § 17-3 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 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.
B.
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:
(1)
The Town does not have a Town Attorney;
(2)
The Town Board determines, based upon its investigation
and review of the facts and circumstances of the case, that representation
by the Town Attorney would be inappropriate; or
(3)
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 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 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.
C.
Where the employee delivers process and request for a defense to the Town Attorney or the Town Supervisor as required by § 17-3 of this chapter, the Town Attorney or the Supervisor, as the case may be, 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 relating to the obligation of the Town to provide a defense.
The duties to defend provided in this chapter
shall be contingent upon the following:
A.
Delivery to the Town Attorney or, if none, to the
Town Supervisor of 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
[Amended 4-15-2003 by L.L. No. 1-2003]
B.
The full cooperation of the employee in the defense
of such 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, unless the employee shall state
in writing that a defense is not requested.