[HISTORY: Adopted by the Town Board of the Town of Greenburgh 8-28-1991 by L.L. No. 24-1991. Amendments noted where applicable.]
Comptroller Department — See Ch. 510.
The following words and terms used in this chapter shall have the meanings indicated:
- Unless the context otherwise requires, any person holding a position by election, appointment or employment in the service of the Town of Greenburgh, 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 benefits of this chapter shall inure only to employees as defined herein and shall not enlarge or diminish the rights of any other party.
The Town shall provide for the defense of an employee in any civil action or proceeding in any court or administrative action arising out of any alleged act or omission which occurred or is alleged to have occurred while the employee was acting or in good faith purporting to act within the scope of his public employment or duties or which is brought to enforce a provision of Sections 1981 through 1988 of Title 42 of the United States Code; provided, however, that the duty of the Town to defend, indemnify or save harmless shall be conditioned upon:
Delivery to the office of the Town Attorney by the employee 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. Such delivery shall be deemed a request by the employee that the Town provide for his defense pursuant to this chapter, subject to written confirmation by the employee that the Town provide for his defense.
The full cooperation of the employee in the defense of such action or proceeding and in the defense of any action or proceeding against the Town based upon the same act or omission and in the prosecution of any appeal.
This duty to provide for a defense shall not arise where such civil action or proceeding is brought by or on behalf of the Town of Greenburgh.
The employee shall be entitled to be represented by the Town Attorney; provided, however, that the employee shall be entitled to representation by private counsel of his choice in any civil judicial proceeding whenever the Town Board determines, based upon its investigation and review of the facts and circumstances of the case and upon the recommendation of the Town Attorney, that representation by the Town Attorney would be inappropriate or whenever a court of competent jurisdiction, upon appropriate motion or by a special proceeding, determines that a conflict of interest exists and that the employee is entitled to be represented by private counsel of his choice. The Town Attorney shall notify the employee, in writing, of such determination that the employee is entitled to be represented by private counsel.
The Town Attorney may require, as a condition to payment of the fees and expenses of such representation by private counsel, 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, the Town Attorney shall so certify to the Town Comptroller. Reasonable attorneys' 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 chapter by the head of the department, commission, division, office or agency in which such employee is employed and upon the audit and warrant of the Town Comptroller. Any dispute with respect to representation of multiple employees by a single counsel or the amount of litigation expenses or the reasonableness of attorneys' fees shall be resolved by the court upon motion or by way of a special proceeding.
Where the employee delivers process and a request for a defense to the Town Attorney, as required by this chapter, the Town Attorney shall take the necessary steps, including the retention of private counsel, under the terms and conditions herein provided, 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.
The Town shall indemnify and save harmless an employee in the amount of any judgment obtained against such employee in any court or in any administrative action or in the amount of any settlement of any claim brought against such employee, provided that the act or omission from which such judgment or settlement arose occurred while the employee was acting or in good faith purporting to act within the scope of his public employment duties. The duty to indemnify and save harmless prescribed by this subsection shall be conditioned upon the employee's compliance with the requirements set forth in this chapter, as well as any other applicable provisions of this section; provided, however, that 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.
When an employee is represented by the Town Attorney and the Town Attorney has before him any proposed settlement, or an employee represented by private counsel shall submit to the Town Attorney any proposed settlement, the Town Attorney shall, after reviewing such proposals as to form and content and after consultation with and certification of such proposed settlement by the head of the department, commission, division. office or agency wherein the employee is employed, give his recommendation to the Town Board. If the Town Board believes it is in the best interest of the Town to accept such settlement, it shall give its approval thereto. Nothing in this section 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 Board.
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 head of the department, commission, division, office or agency in which he is employed, and, if not inconsistent with the provisions of this section, such judgment or settlement shall be certified for payment by such head of the department, commission, division, office or agency. If the Town Attorney concurs in such certification, the judgment or settlement shall be paid upon the audit and warrant of the Town Comptroller.
Nothing in this chapter 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 Article 7-A of the State Finance Law.
The provisions 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 Workers' Compensation Law.
This chapter shall not in any way affect the obligation of any claimant to give notice to the Town under any provision of 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.
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.
The provisions of this chapter shall apply to all actions and proceedings pending upon the effective date thereof or thereafter instituted.