[HISTORY: Adopted by the Town Board of the Town of Stanford as indicated
in article histories. Amendments noted where applicable.]
[1]
Editor's Note: A resolution adopted 1-12-1989 provided that any member of any appointed board or commission that acts or communicates in writing or orally outside of said board does so beyond the scope of his or her public responsibility/duty and shall not be entitled to a right of defense by the Town of Stanford in a civil action and that all acts and communications shall be directed through the chairperson of said board or commission. This resolution was retroactive to the amendment of Chapter 38 on August 11, 1988.
[Adopted 9-11-1980 by L.L. No. 5-1980;
amended in its entirety 9-11-2003 by L.L. No. 5-2003]
As used in this article, 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, notwithstanding when the alleged improper act occurred or is alleged to have occurred and whether or not the employee is compensated, but shall not include an independent contractor. The term "employee" shall include a former employee, his or her estate or judicially appointed personal representative.
- TOWN
- The Town of Stanford.
- TOWN ATTORNEY
- The Town Attorney, if one is appointed, or the attorney(s) to the Town in the absence of appointment of a Town Attorney.
A.
Upon compliance by the employee with the provisions of § 38-4 of this article, the Town shall provide for the defense of the employee in any civil action or proceeding in any state or federal court or administrative action arising out of any alleged act or omission which occurred or allegedly occurred while the employee was acting or in good faith was purporting to act within the scope of his or her public employment and duties or which is brought to enforce a provision of §§ 1981 through 1988 of Title 42 of the United States Code. The duty to provide for a defense shall not arise where such civil action is brought by, at the behest or on behalf of the Town.
B.
Subject to the conditions set forth in this article,
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 Board determines that representation
of the employee 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.
C.
Reasonable attorney's fees and litigation expenses
shall be paid by the Town to such employed or retained attorney from time
to time during the pendency of the civil action or proceeding, subject to
the approval of the Town Board. Payment of such fees and expenses shall be
made in the same manner as payment of other claims and expenses of the Town.
D.
Any dispute with respect to the representation of multiple
employees by the Town Attorney or by an attorney employed or retained for
such purposes, or the amount of litigation expenses, or the reasonableness
of attorneys' fees, shall be resolved by the court upon motion by way
of special proceeding.
E.
Where the employee delivers process and a request for a defense to the Town Supervisor, as required by § 38-4 of this article, the Town Board 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 pertaining to the obligation to provide for a defense.
A.
Subject to the conditions set forth in this article, the Town shall indemnify and save harmless its employees in the amount of any judgment in any state or federal court or in any administrative action, or in the amount of any settlement of any claim brought against such employee, provided that the employee has complied with the provisions of § 38-4 of this article, and further provided that the act or omission from which such judgment or settlement arose occurred while the employee was acting or in good faith purporting to act within the scope of his or her public employment and duties. In the case of a settlement, the duty to indemnify and save harmless shall be further conditioned upon the approval of the amount of settlement by the Town Board.
B.
Except as otherwise prescribed 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.
Any proposed settlement which may be subject to indemnification
by the Town must be submitted to the Town Attorney who shall, after reviewing
such proposal as to form and content and after consultation with and certification
of such proposed settlement by the head of the department, commission, division,
office or agency wherein the employee is employed, give his or her recommendation
to the Town Board. If the Town Board believes it is in the best interest of
the Town to accept such settlement, it shall give its approval thereto. 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 Town Board.
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 Supervisor; and
if not inconsistent with the provisions of this section, the amount of such
judgment or settlement shall be paid by the Town.
A.
The duty to defend or indemnify and save harmless provided
in this article shall be conditioned upon:
(1)
Delivery to the Town Supervisor of 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
(2)
The full cooperation of the employee in the defense of
such action or proceeding and in the defense of any action or proceeding against
the Town based upon the same act or omission and in the prosecution of any
appeal; and
(3)
A finding by the Town Board that the alleged action or
omission on the action which is brought to enforce a provision of U.S.C. §§ 1981
through 1988 occurred while the employee was acting within the scope of his
or her public employment and in the discharge of his or her duties.
B.
Such timely delivery shall be deemed a request by the
employee that the Town provide for his or her defense pursuant to this article,
unless the employee shall state in writing that a defense is not requested.
Nothing in this article shall authorize the Town to indemnify or save
harmless an employee with respect to punitive or exemplary damages, fines
or penalties, money recovered from an employee pursuant to Article 7-A of
the State Finance Law or § 51 of the General Municipal Law or property
forfeited pursuant to § 1311 of the Civil Practice Law and Rules;
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 any
willfulness or intent on his or her part, violated a prior order, judgment,
consent decree or stipulation of settlement in any court of this state or
of the United States.
The provisions of this article shall not be construed to impair, alter,
limit or modify the rights and obligations of any insurer under any policy
of insurance.
A.
The benefits of this article 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 article be construed to affect, alter
or repeal any provision of the Workers' Compensation Law.
B.
This article shall not in any way waive, modify or affect
the obligation of any claimant to give notice to the Town under § 50-e
of the General Municipal Law or any other provision of law.
C.
Except as otherwise provided in this article, the provisions
of this article 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.
D.
Withholding of defense and indemnification. In the event
that the act or omission upon which the court proceeding against the employee
is based was, or is also, the basis of a disciplinary proceeding by the Town
against the employee, defense and indemnification by the Town may be withheld
until such disciplinary proceeding has been resolved. If the resolution of
the disciplinary proceeding exonerated the employee as to such act or omission,
defense and indemnification shall be provided to the employee.
The provisions of this article shall apply to all actions and proceedings
specified herein upon the effective date hereof or thereafter instituted.
