[HISTORY: Adopted by the Town Board of the Town of Mendon 10-13-1980 by L.L. No.
3-1980; amended in its entirety 9-13-1999 by L.L. No.
4-1999 (Ch. 10 of the 1994 Code). Subsequent amendments
noted where applicable.]
This chapter shall be known as the "Legal Defense of Town Officials
and Employees Law" of the Town of Mendon.[1]
A.
Upon compliance by the employee with the provisions of § 19-3 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 is alleged to have occurred while the employee was acting or in good faith purporting to act within the scope of his 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.
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 employee
shall be entitled to be represented by private counsel of his choice
in any civil action or proceeding whenever the Town Attorney or other
attorney designated by the Town determines that a conflict of interest
exists, or whenever a court, upon appropriate motion or otherwise
by a special proceeding, determines that a conflict of interest exists
and that the employee is entitled to be represented by counsel of
his choice; provided, however, that the Town Attorney or other counsel
designated by the Town may require, as a condition to payment of the
fees and expenses of such representation, that appropriate groups
of such employees be represented by the same counsel. 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, with the approval of the Town Board.
C.
Any dispute with respect to representation of multiple employees
by a single counsel or the amount of litigation expenses or the reasonableness
of attorney's fees shall be resolved by the court upon motion
or by way of a special proceeding.
D.
Where the employee delivers process and a request for a defense to the Town Attorney or the Town Supervisor as required by § 19-3 of this chapter, the Town shall take the necessary steps 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.
The duty to defend or indemnify and save harmless prescribed
by this chapter shall be conditioned upon:
A.
Delivery by the employee to the Town Attorney or to the Town Supervisor
of a written request to provide for his defense together with the
original or a copy of any summons, complaint, process, notice, demand
or pleading within 10 days after he is served with such document;
and
B.
The full cooperation of the employee in the defense of such action
or proceeding and in defense of any action or proceeding against the
public entity based upon the same act or omission, and in the prosecution
of any appeal.
A.
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 public employment
or 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.
B.
Except as otherwise provided 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; provided, however, that
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 public employment or duties, has, without
willfulness or intent on his part, violated a prior order, judgment,
consent decree or stipulation of settlement entered in any court of
this state or of the United States.
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 chapter, the amount
of such judgment or settlement shall be paid by the Town.
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 provision of the workers' 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.
This chapter shall not in any way affect the obligation of any
claimant to give notice to the Town under § 10 of the Court
of Claims Act, § 51-e of the General Municipal Law or any
other provision of law.
A.
The Town is hereby authorized and empowered to purchase insurance
from any insurance company created by or under the laws of this state,
or authorized by law to transact business in this state, against any
liability imposed by the provisions of this chapter, or to act as
a self-insurer with respect thereto.
B.
All payments made under the terms of this chapter, whether for insurance
or otherwise, shall be deemed to be for a public purpose and shall
be audited and paid in the same manner as other public charges.
Except 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 to liability
available to or conferred upon any unit, entity, officer or employee
of the Town by, in accordance with, or by reason of any other provision
of state or federal statutory or common law.
Benefits accorded to employees under this chapter shall be in
lieu of and take the place of defense or indemnification protections
accorded the same employees by any other enactment.
The provisions of this chapter shall also be applicable to the
public library supported in whole or in part by the Town.
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.
