[HISTORY: Adopted by the Town Board of the
Town of Seneca Falls 10-1-2013 by L.L. No. 3-2014. Amendments noted where applicable.]
The New York State Legislature has enacted legislation
permitting public entities, including towns, to provide for the defense
and indemnification of officers and employees of the Town. This chapter
implements that concept and the statutory intent set forth in Article
2, § 18, of the Public Officers Law of the State of New
York.
As used in this chapter, the following terms
shall have the meanings indicated:
Any commissioner, member of a public board or commission,
trustee, director, officer, employee, volunteer expressly authorized
to participate in a publicly sponsored volunteer program or any other
person holding a position by election, appointment or employment in
the service of the Town of Seneca Falls, Seneca County, New York (hereinafter
referred to as "the Town"), whether or not compensated. The term "employee"
shall include a former employee, his or her estate or judicially appointed
personal representative.
Either the "Town Attorney," as such term is defined by § 20,
Subdivision (2)(a), of the Town Law of the State of New York, or,
if no such office exists, the "attorney for the Town" appointed by
resolution of the Town Board of the Town.
A.
Upon compliance by the employee with the provisions of § 24-5 of this chapter, the Town shall provide for the defense and indemnification of the employee in any civil action or proceeding, state or federal, arising out of any alleged act or omission which occurred or allegedly occurred while the employee was acting during the course of his or her employment and within the scope of his or her public employment or duties. This duty to provide for a defense and indemnification shall not arise where such civil action or proceeding is brought by, or at the behest 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 the Town does not have a Town Attorney; the
Town Attorney 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 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 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 upon motion or by
way of a special proceeding.
C.
Where the employee delivers process and a written request for a defense to the Town under § 24-5 of this chapter, the Town shall take the 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.
A.
The Town shall indemnify and save harmless its employees
in the amount of any judgment obtained against such employees in a
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 claim
arose occurred while the employee was acting during the course of
his or her employment and within the scope of his or her 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 of the Town
or its insurance company. This obligation by the Town to indemnify
shall not apply to any claims against officers and employees of the
Town, currently outstanding, or reduced to judgment or settlement.
B.
Except as otherwise provided by law, the duty to indemnify
and save harmless prescribed by this section shall not arise where
the injury or damage resulted from intentional wrongdoing or recklessness
on the part of the employee.
C.
Nothing in this section shall authorize the Town to
defend, indemnify or save harmless an employee with respect to any
claims filed, or money recovered from an employee pursuant to § 51
of the General Municipal Law or for any claims alleging intentional
wrongdoing or a reckless act; provided, however, that the Town shall
indemnify and save harmless its employees in the amount of any costs,
attorneys' fees, damages, fines or penalties which may be imposed
by reason of an adjudication that an employee, acting within the scope
of his or her public employment or duties, has, without willfulness
or intent on his or her part, violated a prior order, judgment, consent
decree or stipulation of settlement entered in any court of this state
or of the United States.
D.
Upon entry of a final judgment against the employee
or upon the settlement of the claim, the employee shall serve 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
Town Clerk of the Town and the Town Attorney; and, if not inconsistent
with the provisions of this chapter, the amount of such judgment or
settlement shall be paid by the Town.
The duty to defend or indemnify and save harmless
prescribed by this chapter shall be conditioned upon:
A.
Delivery by the employee to the Town Attorney and
to the Town Clerk of the Town of a written request to provide for
his or her defense, together with the original or a copy of any summons,
complaint, process, notice, demand or pleading, within 10 days after
he or she is served with such document; and
B.
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.
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, nor shall any provision of this chapter
be construed to affect, alter or repeal any provision of the Worker's
Compensation Law.
This chapter shall not in any way affect the
obligation of any claimant to give notice to the Town under § 10
of the Court of Claims Act, § 50-e of the General Municipal
Law or any other provisions of law.
The Town is hereby authorized and empowered
to purchase insurance from any insurance company created by or under
the laws of the State of New York, or authorized by law to transact
business in this state, against any liability imposed by the provisions
of this chapter or to act as a self-insurer with respect thereto.
All payments made under the terms of this chapter,
whether for insurance or otherwise, shall be deemed to be for a public
purpose and shall be audited and paid in the same manner as other
public charges.
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.
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 to liability available to or conferred upon any unit, entity,
officer or employee of the Town by, in accordance with or by reason
of any other provision of state or federal statutory or common law.
Except as otherwise provided in this chapter,
benefits accorded to employees under this chapter shall supplement
and be available in addition to defense or indemnification protection
conferred by any other enactment of the Town Board of the Town or
common law. Notwithstanding anything contained herein to the contrary,
the Town shall be entitled to contribution and/or indemnification
by the employee and/or other agency in the event that such other agency
is also obligated to provide a defense for the employee and/or pay
any sums of money by way of indemnification and/or judgment or award.
The provisions of this chapter shall apply to
all actions or proceedings specified herein which have been commenced,
instituted or brought on or after the effective date of this chapter.
A.
Notwithstanding anything to the contrary contained
herein, there shall be no duty of the Town to defend or indemnify
any employee unless the Town Board finds that the claim arose during
the course of the employee's normal employment and within the scope
of his or her employment in a matter in which the Town had an interest,
the employee was acting in discharge of a duty imposed or authorized
by law and the employee acted in good faith and without malice.
B.
In the event the Town assumes the duty of defense
and in the event a court determines that the employee acted in bad
faith or with malice or in a wanton or willful manner so as to cause
the claim or was not acting in a bona fide discharge of his or her
municipal duties, the employee shall reimburse the Town for all expenses
incurred for defense of claims arising out of the alleged civil action
or civil proceeding. Upon finding by a court, the Town shall have
no duty to satisfy any judgment or claim against the employee, and
in the event the Town has satisfied or is ordered to satisfy said
judgment or claim, the employee must reimburse the Town for any sum
paid for said satisfaction.