[HISTORY: Adopted by the Town Board of the Town of Ithaca 2-7-1983 by L.L. No. 2-1983; amended in its entirety 9-8-1998 by L.L. No. 10-1998. Subsequent amendments noted where applicable.]
As used in this chapter, unless the context otherwise requires, the following terms shall have the meanings indicated:
- Any Town commissioner, member of a Town board or commission, Town officer, Town employee, Town volunteer expressly authorized by the Town to participate in a publicly sponsored volunteer program, or any other person holding a Town position by election, appointment or employment in the service of the Town, whether or not compensated, but shall not include an independent contractor. The term "employee" shall include a former employee of the Town, his estate or judicially appointed personal representative.
- Town of Ithaca.
Upon compliance by the employee with the provisions of § 28-3 of this chapter, 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 including, without limitation, any civil action or proceeding arising out of any alleged act or omission in which it is alleged that the officer or employee has violated the civil rights of the claimant, petitioner or plaintiff under Sections 1981 and 1983 of the United States Civil Rights Act (42 U.S.C. §§ 1981 and 1983). Such defense shall not be provided where such action or proceeding is brought by or on behalf of the Town.
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 of the Town shall employ or retain an attorney for the defense of the employee whenever: 1) the Town does not have a Town Attorney, 2) the Town Board of the Town 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 3) 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 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.
Where the employee delivers process and request for a defense to the Town attorney or the Supervisor as required by § 28-3 of this chapter, the Town Attorney or the Supervisor, as the case may be, shall take the necessary steps, including the retention of an 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.
Subject to the conditions set forth in this chapter, 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, 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 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 of the Town. The duty to indemnify and save harmless prescribed by this subdivision shall not arise where 1) the injury or damage resulted from intentional wrongdoing or recklessness on the part of the employee, or 2) 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, 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.
The duties to defend provided in this chapter shall be contingent upon a) 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 five days after the employee is served with such document and b) 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 the employee's defense pursuant to this chapter, unless the employee shall state in writing that a defense is not requested.
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 of the Town; and if the employee has complied with the provisions of this section as well as the other provisions of this chapter and § 18 of the Public Officers Law, 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.
The provisions of this chapter are not in any way intended to 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.
All payments made under the terms of this chapter, whether for insurance or otherwise shall be deemed to be for a public purpose and shall be audited and paid in the same manner as other public charges.
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.
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 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 benefits accorded to employees under this chapter shall be in lieu of and take the place of defense or indemnification protections accorded the same employees by another enactment, except Public Officers § 18, it being the intention that the indemnification and defenses provided pursuant to this chapter shall be coextensive with those provided under § 18 of the Public Officers Law.
The provisions of this chapter shall apply to all actions and proceedings specified herein which have been commenced, instituted or brought on or after the effective date of this chapter.
If any provision of this chapter or the application thereof to any person or circumstance be held unconstitutional or invalid in whole or in part by any court, such holding of unconstitutionality or invalidity shall in no way affect or impair any other provisions of this chapter or the application of any such provision to any other person or circumstance.
This chapter is adopted pursuant to the provisions of § 18 of the Public Officers Law of the State of New York and is intended to qualify as a local law: