[HISTORY: Adopted by the Town Board of the Town of Orchard Park:
Art. I, 4-1-81. Amendments noted where applicable.]
[Adopted 4-1-81]
As used in this Article, the following terms shall have the meanings
indicated:
Any person holding a position by election, appointment or employment
in the service of the town, but shall not include a volunteer, any person
not compensated for his services or an independent contractor. The term "employee"
shall include a former employee, his estate or judicially appointed personal
representative.
The Town of Orchard Park.
A.Â
Upon compliance by the employee with the provisions of § 23-3 of this Article, 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 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.Â
Subject to the conditions set forth in this Article,
the employee shall be represented by an attorney employed or retained by the
town for the defense of the employee. 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 Town Supervisor that the employee is entitled
to representation under the terms and conditions of this Article. 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
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 Town Supervisor as required by § 23-3 of this Article, the Town Attorney or the Supervisor, as the case may be, shall take the necessary steps including the retention of any attorney 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 relating to the obligation of the town to provide a defense.
The duties to defend provided in this resolution shall be contingent
upon delivery to the Town Attorney or, if none, to the Town Supervisor of
the original or a copy of any summons, complaint, process, notice, demand
or pleading within five days after he is served with such document and 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 defense
pursuant to this Article, unless the employee shall state in writing that
a defense is not requested.
The benefits of this Article will inure only to employees as de fined
herein and shall not enlarge or diminish the rights of any other party, nor
shall any provision of this Article be construed to effect, alter or repeal
any provisions of the Workmen's Compensation Law.
The benefits of this Article 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 Article 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 Article, the provisions of
this Article 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 the state or federal statutory or common law.
The provisions of this Article shall apply to all actions and proceedings
specified herein which have been commenced, instituted or brought on or after
the effective date of this Article.
[Added 10-1-86]
A.Â
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, including punitive
or exemplary damages, 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 governing body of the town.
[Amended 2-1-89]
B.Â
Except as otherwise provided by law, the duty to indemnify
and save harmless prescribed by this Article shall not arise where the injury
or damage resulted from intentional wrondoing or recklessness on the part
of the employee.
C.Â
Nothing in this Article shall authorize the town to indemnify
or save harmless an employee with respect to 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 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.
[Amended 2-1-89]
D.Â
Upon entry of a final judgment against an 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 Article, the amount of
such judgment or settlement shall be paid by the town.
[Added 10-1-86]
This Article shall apply to any person rendering professional services
to the town.
[1]
Editor's Note: Former Art II. Retirement Incentive Program, adopted
6-5-85 as L.L. No. 3-1985, was repealed 10-1-86.
