[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:
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.
The Town of Stanford.
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.