[HISTORY: Adopted by the Town Board of the Town of Marcellus 7-13-2015 by L.L. No. 3-2015. Amendments noted where applicable.]
This chapter is enacted pursuant to the New York State Constitution,
New York Municipal Home Rule Law § 10 and Public Officers
Law § 18.
As used in this chapter, 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 Marcellus, 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.
The Supervisor of the Town of Marcellus.
The Town of Marcellus, New York.
The duly appointed attorney of the Town of Marcellus.
The Town Board of the Town of Marcellus.
A.Â
Upon compliance by the employee with the provisions of § 28-5 of this chapter, the Town shall provide for the defense of the employee:
(1)Â
In any civil action or proceedings 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 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; or
(2)Â
In any criminal proceeding in a state or federal court arising out
of any act which occurred while the employee was acting within the
scope of his or her public employment or duties, provided the employee
is acquitted or the criminal charges against the employee are dismissed.
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: the Town does not have a Town Attorney; 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 a court of competent jurisdiction determines that a conflict of
interest exists and that the employee cannot be represented by the
Town Attorney. Reasonable attorneys' 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 Supervisor as required by § 28-5 of this chapter, the Town Attorney or the Town Board, as the case may be, shall take the necessary steps including the retention of an attorney under the terms and conditions provide 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
Subject to the conditions set forth in this chapter, the Town shall
indemnify and hold harmless its employee in the amount of any judgment
obtained against such employee 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.Â
The duty to indemnify and save harmless prescribed by this section
shall not arise where the injury or damages result from intentional
wrongdoing or recklessness on the part of the employee.
C.Â
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, attorneys'
fees, damages, fines or penalties which may be imposed by reasons
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 New York State or of the United
States.
D.Â
The limit of indemnification under this chapter shall be the limit
of liability in the pertinent and applicable public officials' and/or
employees' liability insurance policy maintained by the Town, and
all employees shall fully cooperate with said insurer, and failure
to so cooperate shall be a waiver of any rights of the employee under
this chapter.
A.Â
The duty to defend provided in this chapter shall be contingent upon:
(1) delivery to the Town Attorney or, if none, to the Supervisor of
the original or a copy of any summons, complaint, process, notice,
demand or pleading within 10 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 that the Town
provide for the employee's defense pursuant to this chapter unless
the employee shall state in writing that a defense is not requested.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
B.Â
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; 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 provisions of this chapter be construed
to affect, alter or repeal any provisions of the Workers' Compensation
Law.
A.Â
The provisions of this chapter shall not be construed to alter, limit
or modify the rights and obligations of any insurer under any policy
of insurance.
B.Â
Except as otherwise specifically provided in this chapter, the provisions
of this chapter shall not be construed in any way to impair, limit,
modify, abrogate or restrict any immunity to liability available to
or conferred upon any unit, entity, officer or employee of any public
entity by, in accordance with or by reason of any other provision
of state or federal statutory or common law.
This article shall not in any way affect the obligation of any
claimant to give notice to the Town under § 50-e of the
General Municipal Law or any other provision of law.
If any clause, sentence, paragraph, subdivision or part of this
chapter or the application thereof to any person, firm or corporation,
or circumstance, shall be adjudged by any court of competent jurisdiction
to be invalid or unconstitutional, such order or judgment shall not
affect, impair or invalidate the remainder thereof, but shall be confined
in its operation to the clause, sentence, paragraph, subdivision or
part of this chapter or in its application to the person, individual,
firm or corporation or circumstance, directly involved in the controversy
in which such judgment or order shall be rendered.
