[HISTORY: Adopted by the Town Board of the Town of Pine Plains 5-16-2002 by L.L. No. 1-2002. Amendments noted where applicable.]
As used in this chapter, 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 Pine Plains.
Upon compliance by the employee with the provisions of § 16-6 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/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 United States 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.
A.
Subject
to the conditions set forth in this chapter, 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 shall employ or retain an attorney for the defense
of the employee whenever:
(1)
The
Town does not have a Town Attorney or Attorney to the Town;
(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 or Attorney to the Town 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 or
Attorney to the Town.
B.
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 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, 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.
Where the employee delivers process and request for a defense to the Town Attorney, Attorney to the Town, or the Supervisor as required by § 16-6 of this chapter, 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 § 16-3 of this chapter, 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.
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 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. The duty to indemnify
and save harmless prescribed by this section shall not arise where
the injury or damage resulted from intentional wrongdoing or fines
or penalties, or money recovered from an employee pursuant to § 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 provided in this chapter shall be contingent
upon: (1) 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 five days after
he/she 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. Such delivery shall
be deemed a request by the employee that the Town provide for his/her
defense pursuant to this chapter, unless the employee shall state
in writing that a defense is not requested.
B.
The duty to indemnify and save harmless prescribed by this chapter
shall be conditioned upon 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.
C.
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.
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 provisions of this chapter be construed
to affect, alter or repeal any provisions of the Workers' Compensation
Law.
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.
