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.
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.
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.
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.
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.
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.
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.
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.
This Article shall apply to any person rendering professional services to the town.