[HISTORY: Adopted by the Town Board of the Town of Hyde Park 10-27-1986 by L.L. No. 4-1986; amended in its entirety 11-22-2004 by L.L. No. 6-2004. Subsequent amendments noted where applicable.]
Personnel policies — See Ch. 22.
This chapter shall be known and cited as "Defense and Indemnification of Officers and Employees."
The purpose of this chapter is to provide for the defense and indemnification of municipal officials and employees of the Town of Hyde Park who are sued civilly for alleged acts or omissions occurring while they are acting within the scope of their appointment or official duties and responsibilities. In enacting this chapter, the Board finds that the State of New York has enacted similar provisions for the legal and financial security of its officers and employees and further finds that such security is also required for local personnel. It is solely the intent of this chapter to provide similar coverage for the Town employees as is presently provided for state employees, so as to continue to attract qualified individuals to local government service.
As used in this chapter, the following terms shall have the meanings indicated:
- Any commissioner, member of a public board or commission, trustee, director, officer, employee, volunteer expressly authorized to participate in a publicly sponsored volunteer program, or any other person holding a position by election, appointment or employment in the service of the Town of Hyde Park, whether or not compensated, but shall not include the sheriff of any county or an independent contractor. "Employee" shall also include a former employee of the Town of Hyde Park, his estate or judicially appointed personal representative.
- Town of Hyde Park.
The provisions of this chapter shall apply to all actions and proceedings pending upon the effective date thereof or thereafter instituted.
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 or any right to defense and/or indemnification available to or conferred upon any unit, entity, officer, or employee of the Town by, in accordance with, or by reason of any other provisions of state or federal statutory or common law.
Defend and indemnify. The Town of Hyde Park shall defend, indemnify and save harmless its employees from any civil action or proceeding brought in any state or federal court, arising out of any alleged act or omission which occurred or allegedly occurred while the employee was acting within the scope of his public employment or duties. This duty to provide for a defense shall not arise where such civil action or proceeding is brought by or at the behest of the public entity employing such employee.
Judgment or settlement. The Town of Hyde Park shall defend, indemnify and save harmless its employees in the amount of any judgment obtained against such employees in any 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 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 Town Board, and the Town Attorney's review of the proposed settlement as to form and amount. Nothing in this subsection shall be construed to authorize the Town to indemnify or save harmless an employee with respect to a settlement not so reviewed by the Town Attorney.
When settlement is recommended. In the event that the Town or its insurance carrier recommends settlement of any such action or proceeding, and the employee refuses to agree to the settlement, the Town and its insurance carrier, if any, shall have no liability for any judgment, including, but not limited to, judgments for punitive or exemplary damages, fines or penalties, or any settlement to the extent that the amount of such judgment or settlement exceeds the settlement recommended and refused by the employee.
Private counsel. The employee shall be entitled to be represented by private counsel of his choice in any civil action or proceeding whenever the Town Attorney of the Town of Hyde Park or other counsel designated by the Town Board determines that a conflict of interest exists, or whenever a court, upon appropriate motion or otherwise by a special proceeding, determines that a conflict of interest exists and that the employee is entitled to be represented by counsel of his choice; provided, however, that the Town Attorney or other counsel so designated may require, as a condition to payment of the fees and expenses of such representation, that appropriate groups of such employees be represented by the same counsel. In the event that the Town Attorney is a named defendant in an action or proceeding or cannot serve for any other reason, the Town Board shall appoint other counsel to serve instead of the Town Attorney on the matter under review.
Fees. Reasonable attorneys' fees and litigation expenses shall be paid by the Town of Hyde Park to such private counsel from time to time during the pendency of the action or proceeding with the approval of the Town Board.
Dispute as to representation or fees. Any dispute with respect to representation of multiple employees by a single attorney, or the amount of litigation expenses, or the reasonableness of attorneys' fees shall be resolved by the court upon motion or by way of special proceeding.
Determination of intentional wrongdoing or recklessness. Except as otherwise provided by law, the duty to defend, indemnify and save harmless prescribed by this section shall not arise where the injury or damage resulted from intentional wrongdoing or recklessness on the part of the employee. The Town Board shall meet as soon as practicable, in executive session which shall remain confidential, to review, make findings, and determine whether the employee was acting in good faith, and purporting to act within the scope of his employment or duties. Such determination shall be made after a full investigation into the allegations of the complaint by the Town Attorney's office, with the assistance of such other individuals as may be reasonably necessary. If the Town determines that the employee was not acting within the scope of his employment or duties, the Town shall bear no legal expense on behalf of such employee, nor shall it indemnify the employee for any judgment obtained against him; further, if, after an initial determination that the employee was acting within the scope of his employment, the Town determines that the employee has misled the Town or has otherwise acted in bad faith during the pendency of the action or proceeding and the Town determines that the employee was not, in fact, acting or purporting to act within the scope of his employment or duties, the Town shall bear no legal expense on behalf of such employee, nor shall it indemnify the employee for any judgment obtained against him.
Police officers. In addition to the duties and liabilities imposed upon the Town of Hyde Park by the provisions set forth in § 50-j, Subdivisions 1 and 2, of the General Municipal Law (liability of and duty to save harmless any of its duly appointed police officers for any negligent act or tort, provided that the police officer was acting within the scope of his employment and in the performance of his duties), the Town shall further provide for the defense of any civil action or proceeding brought against a duly appointed police officer of the Town and shall indemnify and save harmless such police officer of the Town from any judgment of a court of competent jurisdiction whenever such action, proceeding or judgment is for punitive or exemplary damages arising out of a negligent act or other tort committed by such officer while in the proper discharge of his duties and within the scope of his employment, as so set forth in Subdivision 6 of § 50-j of the General Municipal Law. The determination of whether any such police officer properly discharged his duties within the scope of his employment shall be made in accordance with the provisions set forth in Subsection G of this section.
The Town of Hyde Park shall defend, indemnify, and save harmless its employees in the amount of any punitive damages in accordance with the following procedure and such additional procedures as may be established by the Town Attorney:
In the event of a final judgment of punitive damages against the employee, the employee shall serve copies of such judgment personally or by certified or registered mail within 10 days of the date of entry upon the Town Attorney and upon the Town Clerk on behalf of the Town Board. The Town Board shall meet as soon as practicable, in executive session which shall remain confidential, to review, make findings, and determine if all the following have been met and, if so met, shall appropriate the funds necessary to pay such punitive damages:
The judgment of punitive damages is based on an act or omission of an employee acting within the scope of his/her employment;
At the time of the action or omission giving rise to the liability, the employee acted without recklessness, without maliciousness and without gross negligence and otherwise within the standards required for employees holding comparable positions within the Town;
At the time of the act or omission, the employee acted in good faith and in the best interests of the Town; and
At the time of the act or omission, the employee did not willfully violate a clearly established provision of law or Town policy.
The duty to defend, indemnify and save harmless provided by this chapter shall be conditioned upon delivery to the Town Attorney, at his office, of the original or a copy of all papers served upon the employee, including any summons, complaint, process, notice, demand or pleading within five days after the service has been made; and the full cooperation of the employee in the defense of such action or proceeding and in 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 of Hyde Park provide for his defense pursuant to this chapter.
Where the employee delivers the papers served upon him to the Town Attorney in accordance with the provisions set forth in § 18-7, the Town Attorney shall take the necessary steps, including the retention of private counsel under the terms and conditions provided in § 18-5D, 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 benefits 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 section be construed to affect, alter or repeal any provision of the Worker's Compensation Law.
The benefits of this chapter 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 Town is authorized and empowered to purchase insurance to cover the costs of such defense and indemnification or to act as a self-insurer with respect thereto. 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.