[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.]
GENERAL REFERENCES
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.
A.
The provisions of this chapter shall apply to all actions
and proceedings pending upon the effective date thereof or thereafter instituted.
B.
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.
C.
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.
A.
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.
B.
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.
C.
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.
D.
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.
E.
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.
F.
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.
G.
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.
H.
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.
A.
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:
B.
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:
(1)
The judgment of punitive damages is based on an act or
omission of an employee acting within the scope of his/her employment;
(2)
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;
(3)
At the time of the act or omission, the employee acted
in good faith and in the best interests of the Town; and
(4)
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.
A.
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.
B.
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.
