[HISTORY: Adopted by the Orangetown Town Board 6-8-1981 by L.L. No. 6, 1981; amended in its entirety 8-12-1996 by L.L. No. 5, 1996. Subsequent amendments noted where applicable.]
Code of Ethics — See Ch. 1.
The Town Board of the Town of Orangetown has determined that in order to ensure the continued and future service of responsible and capable individuals as officials and employees of the Town of Orangetown it is necessary and proper to assure that they are afforded protection against individual liability for actions occurring within the scope of their duties and employment.
The title of this local law shall be "Defense and Indemnification of Public Employees."
As used in this local law, the following terms shall have the meanings indicated:
- Any person holding a position by election, appointment or employment in the service of the Town, whether or not compensated, including a volunteer authorized to participate in a volunteer program sponsored by the Town, but shall not include an independent contractor. The term "employee" shall include a former employee, his or her estate or judicially appointed representative.
The Town shall provide for the defense of an employee in any civil action or proceeding in any municipal, state, federal or other court or any administrative or judicial action or proceeding arising out of any alleged act or omission which occurred or is alleged in the complaint to have occurred while the employee was acting within the apparent scope of his or her employment or duties, including an action or proceeding which is brought to enforce a provision of 42 U.S.C. § 1981 or 1983. This duty to provide for a defense shall not arise where such civil action or proceeding is brought by or at the behest of the Town.
Subject to the conditions set forth in § 19A-7 below, the employee shall be entitled to be represented by private counsel of his or her choice in any civil, judicial or administrative action or proceeding whenever the Town Attorney or other counsel designated by the Town Board determines that a conflict of interest exists or whenever a court, as provided by § 18 of the New York Public Officers Law, determines that a conflict of interest exists and that the employee is entitled to be represented by private counsel of his or her choice; provided, however, that the Town Attorney or other counsel designated by the Town Board may require, as a condition to payment of the fees and expenses of such representation, that appropriate groups of employees be represented by the same counsel. Reasonable attorneys' fees and litigation expenses shall be paid by the Town to such authorized private counsel from time to time during the pendency of the civil, judicial or administrative action or proceeding, subject to the usual audit. Any dispute with respect to representation of multiple employees and any other municipal defendants by a single counsel or the amount of litigation expenses or the reasonableness of attorneys' fees shall be resolved as provided in § 18 of the New York Public Officers Law.
If the claims or causes of action alleged against all defendants in the action or proceeding pending against the employee are within the coverage of any liability insurance policy issued to the Town, the employee shall accept representation by counsel selected in accordance with the terms of such policy.
The Town shall indemnify and save harmless its employees in the amount of any judgment or civil, administrative or judicial charge or liability obtained against or imposed on such employees in any municipal, state, federal or other court or administrative or judicial forum or in the amount of any authorized settlement of a matter or claim, provided that the act or omission from which such judgment, charge, liability or settlement arose occurred while the employee was acting within the apparent scope of his or her public employment or duties. The duty to indemnify and save harmless prescribed by this provision shall not arise where the injury or damage resulted from intentional wrongdoing or recklessness on the part of the employee.
In the case of settlement, the duty to indemnify and save harmless shall be conditioned upon the approval of the settlement by the Town Board.
Nothing in this local law shall authorize the Town to indemnify or save harmless an employee with respect to punitive or exemplary damages, fines or penalties.
Upon entry of a final judgment or imposition of a civil, administrative or judicial charge or liability against or imposed on an employee or upon the settlement of the matter or claim, the employee shall cause to be served a copy of such judgment, the determination imposing such charge or liability or the settlement, personally or by certified or registered mail, within 30 days of the date of entry, issue or settlement, upon the Supervisor's office, and if not inconsistent with the provisions of this local law, such judgment, charge, liability or settlement shall be paid by the Town.
The duty to defend or indemnify and save harmless prescribed by this local law shall be conditioned upon delivery to the Town Attorney or, if none, to the Town Supervisor by the employee of the original or a copy of any summons, complaint, process, notice, demand or pleadings within 10 days after he or she is served with such document and the full cooperation of the employee in the defense of such action or proceeding and in 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 or her defense pursuant to this local law, and the Town shall take the necessary steps on behalf of the employee to avoid entry of a default judgment pending resolution of any questions pertaining to the obligation to provide for a defense.
The benefits of this local law shall inure only to employees as defined herein and shall not enlarge or diminish the rights of any other party, and no provision of this local law shall be construed to affect, alter or repeat any provision of the Workers' Compensation Law.
The provisions of this local law shall not be construed to impair, alter, limit or modify the rights and obligations of any insurer under any policy of insurance.
The provisions of this local law shall apply to all actions and proceedings commenced on or after the effective date hereof or hereafter instituted.
Except as otherwise specifically provided herein, the provisions of this local law 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 and/or indemnification provided for any governmental officer or employee by, in accordance with or by reason of any other provision of Town, state or federal statutory or common law.