[HISTORY: Adopted by the Town Board of the Town of Waterford 3-1-2016 by L.L. No. 2-2016. Amendments noted where applicable.]
The purpose of this chapter is to provide legal and financial
protection for those individuals serving the Town of Waterford from
losses which may be brought against them in their individual capacity
for actions taken while in the performance of their official duties
and responsibilities. In enacting this chapter, the Town Board finds
that the State of New York has enacted similar provisions for the
legal and financial security of its officers and employees and further
finds that such security is also required for local personnel. By
enactment of this chapter, the Town Board does not intend to limit
or otherwise abrogate any existing right or responsibility of the
Town of Waterford or its employees with regard to indemnification
or legal defense. It is solely the intent of this chapter to provide
maximum coverage for local employees, such as is presently provided
for state employees, so as to continue to attract qualified individuals
to local government service.
As used in this chapter, unless the context otherwise requires,
the following terms shall have the meanings indicated:
Any person holding a position by election, appointment or
employment in the service of the Town of Waterford, whether or not
compensated, or a volunteer expressly authorized to participate in
a municipally sponsored volunteer program, but shall include a former
employee, his or her estate or judicially appointed personal representative.
The term "employee" shall also include members of all boards, commissions
and corporations of and affiliated with the Town, including all local
development corporations and community resource corporations affiliate
with the Town.
A.
Conditions. Upon compliance by the employee with the provisions of § 7-5 of this chapter, the Town of Waterford shall provide for the defense of the employee in any civil and criminal action or proceeding in any state or federal court arising out of any alleged act or omission of a federal, state or local rule or regulation which occurred or is alleged in the complaint to have occurred while the employee was acting within the scope of his or her public employment or duties, or which is brought to enforce a provision of the laws of the United States, including but not limited to 42 U.S.C. § 1981 or 1983.
B.
Representation
by Town Attorney; private counsel.
(1)
Subject to the conditions set forth in Subsection A of this section, the employee shall be entitled to be represented by the Town Attorney (which throughout shall also mean interchangeably the attorney for the Town); provided, however, that the employee shall be entitled to representation by private counsel of his or her choice in any civil judicial proceeding whenever the Town Attorney determines, based upon his or her investigation and review of the facts and circumstances of the case, that representation by the Town Attorney would be inappropriate or whenever a court of competent jurisdiction, upon appropriate motion or by special proceeding, determines that a conflict of interest exists and that the employee is entitled to be represented by private counsel of his or her choice. The Town Attorney shall notify the employee, in writing, of such determination that the employee is entitled to be represented by private counsel of his or her choice.
(2)
The Town Attorney 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. If the employee or group
of employees is entitled to representation by private counsel under
the provisions of this section, the Town Attorney shall so certify
to the Town Board. Reasonable attorney's fees and litigation expenses
shall be paid by the Town to such private counsel from time to time
during the pendency of the civil action or proceeding, subject to
certification that the employee is entitled to representation under
the terms and conditions of this section by the head of the department,
commission, division or agency in which such employee is employed.
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.
C.
Duty of Town Attorney. Where the employee delivers process and a request for a defense to the Town Attorney as required by § 7-5 of this chapter, the Attorney shall take the necessary steps, including the retention of private counsel 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 pertaining to the obligation to provide for a defense.
A.
Indemnification
of employees. The Town shall indemnify and save harmless its employees
in the amount of any judgment obtained against such employees in any
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 settlement
arose occurred while the employee was acting within the scope of his
or her public employment or duties; the duty to indemnify and save
harmless prescribed by this subsection shall not arise where the injury
or damage resulted from intentional wrongdoing or recklessness on
the part of the employee.
B.
Settlement.
An employee represented by private counsel shall cause to be submitted
to the Town Board any proposed settlement which may be subject to
indemnification by the Town and, if not inconsistent with the provisions
of this section, the Town Board shall certify such settlement, and
submit such settlement and certification to the Town Attorney. The
Attorney shall review such proposed settlement as to form and amount
and shall give his or her approval if, in his or her judgment, the
settlement is in the best interest of the Town. Nothing in this subsection
shall be construed to authorize the Town to indemnify or save harmless
an employee with respect to a settlement not so reviewed and approved
by the Town Attorney.
C.
Payment
of final judgment or settlement. Upon entry of a final judgment against
the employee or upon the settlement of the claim, the employee shall
cause to be served 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; and, if not inconsistent
with the provisions of this section, such judgment or settlement shall
be certified for payment by the Supervisor. If the Attorney concurs
in such certification, the judgment or settlement shall be paid upon
the audit and warrant of the Town Treasurer.
The duty to defend or indemnify and save harmless provided by
this chapter shall be conditioned upon delivery to the Town Attorney
or his or her assistant, at his or her office, by the employee of
the original or a copy of any summons, complaint, process, notice,
demand or pleading within five 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 chapter.
The benefits of this chapter shall 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 Workmen's 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.
The provisions of this chapter shall apply to all actions and
proceedings pending upon the effective date thereof or thereafter
instituted, whether or not the actions or proceedings complained of
occurred prior to or subsequent to the effective date of this chapter.
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 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 state or federal statutory or common
law.
