Town of Amenia, NY Chapter 12 Defense and Indemnification

[HISTORY: Adopted by the Town Board of the Town of Amenia 1-20-2000 by L.L. No. 2-2000. Amendments noted where applicable.]

§ 12-1 Definitions.

As used in this chapter, unless the context otherwise requires:

EMPLOYEE

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 service, or an independent contractor. The term "employee" shall include a former employee, his estate or judicially appointed personal representative.

TOWN

The Town of Amenia.

§ 12-2 Provisions for defense by town.

A. Upon compliance by the employee with the provisions of § 12-5 of this chapter, the town shall provide for the defense 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 within the scope of his public employment or duties. 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 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 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 Attorney or the Town Supervisor, as required by § 12-5 of this chapter, such Town Attorney or Town Supervisor 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.

§ 12-3 Provisions for indemnification by town.

A. Subject to the conditions set forth in this chapter, 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 employee has complied with the provisions of § 12-5 of this chapter, and further provided that the act or omission from which such judgment or claim arose occurred while the employee was acting within the scope of his public employment or 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 proscribed 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 indemnify or save harmless an employee with respect to punitive or exemplary damages, fines or penalties, or money recovered from an employee pursuant to § 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 public employment or duties, has, without any willfulness or intent on his part, violated a prior order, judgment, consent decree or stipulation of settlement in any court of this state or of the United States.

§ 12-4 Civil rights actions.

Upon compliance by the employee with the provisions of § 12-5 of this chapter, the town shall provide for the defense of any employee in any civil action or proceeding arising out of any alleged act or omission in which it is alleged that the employee has violated the civil rights of the claimant, petitioner, or plaintiff under §§ 1981 and 1983 of the United States Civil Rights Act. The town shall indemnify and save harmless such employee in the amount of any judgment or settlement or claim except for punitive or exemplary damages obtained against such employee. Such legal defense and indemnification shall be provided where the employee at the time of such alleged act or omission was acting in good faith and within the scope of his public employment or duties. The provisions of this section shall be in addition to any other statute, local law or enactment providing legal defense and indemnification in civil actions brought against such employee.

§ 12-5 Conditions for defense and indemnification.

A. The duty to defend or indemnify and save harmless provided in this chapter shall be conditioned upon:

(1) Delivery to the Town Attorney or Town Supervisor of the original or a copy of any summons, complaint, process, notice, demand or pleading within five days after he is served with such document; and

(2) 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.

B. Such timely 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.

§ 12-6 Effect on insurers.

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.

§ 12-7 Limitations on applicability.

A. 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 Workers' Compensation Law.

B. This chapter 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 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.