[HISTORY: Adopted by the Town Board of the Town of Penfield 7-21-1980 by L.L. No.
3-1980. Amendments noted where applicable.]
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, whether or not compensated, but shall not
include an independent contractor. The term "employee" shall include
a former employee, his estate or judicially appointed personal representative.
[Amended 12-16-2015 by L.L. No. 3-2015]
The Town of Penfield.
A.Â
Upon compliance by the employee with the provisions of § 15-3 of this chapter, 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 or her public employment or duties. Such defense shall not be provided where such civil action or proceeding is brought by or on behalf of the Town.
B.Â
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 1) the Town does not have a Town Attorney, 2) the Town Board
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 3) 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 the 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.
C.Â
Where the employee delivers process and a request for a defense to the Town Attorney or the Town Supervisor as required by § 15-3 of this chapter, the Town Attorney or the 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.
A.Â
The duties to defend provided in this chapter shall be contingent
upon:
[Amended 12-16-2015 by L.L. No. 3-2015]
(1)Â
Delivery by the employee to the Town Attorney or, if none, to the
Town Supervisor 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
(2)Â
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.Â
Such delivery shall be deemed a request by the employee that the
Town provide for his or her defense pursuant to this chapter, unless
the employee shall state in writing that a defense is not requested.
The benefits of this chapter will 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 provisions of the Worker's Compensation
Law.
The benefits of this chapter shall be extended to an employee
of a negotiating unit for which an agreement has been negotiated pursuant
to Civil Service Law Article 14 only if such agreement expressly so
provides.
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.
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 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.
The provisions of this chapter shall apply to all actions and
proceedings specified herein which have been commenced, instituted
or brought on or after the effective date of this chapter.
