[Adopted 11-7-2002 by L.L. No. 1-2002 (Ch. 9 of the 1979
Code)]
As used in this article, unless the context otherwise requires,
the following terms shall have the meanings indicated:
Any Town Supervisor, member of a Town board or commission,
Town officer, Town employee, Town volunteer expressly authorized by
the Town 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, whether or not compensated,
but shall not include an independent contractor. The term "employee"
shall include a former employee of the Town, his/her estate or judicially
appointed personal representative.
The Town of North East.
A.
Upon compliance by the employee with the provisions of § 55-3 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 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/her public employment or duties, including, without limitation, any civil action or proceeding arising out of any alleged act or omission in which it is alleged that the officer or employee has violated the civil rights of the claimant, petitioner or plaintiff under Sections 1981 and 1983 of the U.S. Civil Rights Act (42 U.S.C. §§ 1981 and 1983). Such defense shall not be provided where such action or proceeding is brought by or on behalf of the Town.
B.
Representation by Town Attorney.
(1)
Subject to the conditions set forth in this article, the employee
shall be represented by the Town Attorney, or Attorney to the Town
or an attorney employed or retained by the Town for the defense of
the employee. The Town Board of the Town shall employ or retain an
attorney for the defense of the employee whenever:
(a)
The Town does not have a Town Attorney or Attorney to the Town;
(b)
The Town Board of the Town determines based upon its investigation
and review of the facts and circumstances of the case that representation
by the Town Attorney or Attorney to the Town would be inappropriate;
or
(c)
A court of competent jurisdiction determines that a conflict
of interest exists and that the employee cannot be represented by
the Town Attorney or Attorney to the Town.
(2)
Reasonable attorneys' 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 Supervisor that the employee is entitled to representation
under the terms and conditions of this article. 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, Attorney to the Town 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, Attorney to the Town, or the Supervisor as required by § 55-3 of this article, the Town Attorney, Attorney to the Town or 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.
D.
Subject to the conditions set forth in this article, 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 within the scope of his/her public employment
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. The duty
to indemnify and save harmless prescribed by this subsection shall
not arise where the injury or damage resulted from intentional wrongdoing
or fines or penalties, or money recovered from an employee pursuant
to Section 51 of the General Municipal Law; provided, however, the
Town shall indemnify and save harmless its employees in the amount
of any costs, attorney's fees, damages, fines or penalties which may
be imposed by reason of an adjudication that an employee, acting within
the scope of his/her public employment or duties, has, without willfulness
or intent on his/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.
A.
The duties to defend or indemnify and save harmless provided in this
article shall be contingent upon delivery to the Town Attorney or
Attorney to the Town or, if neither, to the Supervisor of the original
or a copy of any summons, complaint, process, notice, demand or pleading
within 10 days after he/she is served with such document; and 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. Such delivery shall be deemed a request by the employee that
the Town provide for his/her defense pursuant to this article, unless
the employee shall state in writing that a defense is not requested.[1]
B.
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 Supervisor of
the Town; 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 benefits of this article will inure only to employees as defined
herein and shall not enlarge or diminish the rights of any other party
nor shall any provisions of this article be construed to affect, alter
or repeal any provisions of the Workers' Compensation Law.
B.
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.
C.
As otherwise specifically 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.
The provisions of this article shall apply to all actions and proceedings
specified herein which have been commenced, instituted or brought
on or after the effective date of this article.
