[HISTORY: Adopted by the Town Board of the Town of Greenburgh 8-28-1991
by L.L. No. 24-1991. Amendments noted where applicable.]
GENERAL REFERENCES
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.
A.
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:
(1)
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.
(2)
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.
B.
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.
C.
Counsel.
(1)
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.
(2)
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.
D.
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.
A.
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.
B.
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.
C.
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.
A.
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.
B.
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.
C.
This chapter shall not in any way affect the obligation
of any claimant to give notice to the Town under any provision of law.
D.
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.
E.
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.
F.
The provisions of this chapter shall apply to all actions
and proceedings pending upon the effective date thereof or thereafter instituted.
