[Adopted 10-19-1983 by L.L. No. 1-1983
(Ch. 53, Art. I, of the 1975 Code)]
[Amended 7-17-1996 by L.L. No. 14-1996]
Pursuant to the provisions of § 18 of the Public Officers
Law, as it may from time to time be amended, the Town of Mamaroneck hereby
confers upon its employees, as that term is defined in said section, the benefits
provided by said section, subject to the conditions and limitations set forth
therein.
The Town of Mamaroneck shall be liable for the costs incurred pursuant to § 18 of the Public Officers Law and to § 26-1 of this Article.
Pursuant to Subdivision 8 of said § 18, the Town of Mamaroneck
shall purchase public officers liability insurance with appropriate limits
and coverage against any liability assumed under this section to the extent
that such insurance is available at reasonable cost.
[Added 1-6-1999 by L.L. No. 1-1999]
A.
TOWN
EMPLOYEE
Definitions. As used in this section, the following terms
shall have the meanings indicated, unless the context otherwise requires:
The Town of Mamaroneck, its departments and agencies
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, whether
or not compensated. The term "employee" shall include a former employee, his/her
estate or judicially appointed personal representative.
B.
Supplemental defense. Upon compliance by the employee with the provisions of Subsection D of this section, the Town shall provide for the defense of the employee in any civil administrative action or proceeding, state or federal, arising out of any alleged act or omission which occurred or allegedly occurred while the employee was acting within the scope of his/her public employment or duties. This duty to provide for a defense shall not arise where such civil administrative action or proceeding is brought by or at the behest of the Town.
C.
Supplemental indemnification.
(1)
The Town shall indemnify and save harmless its employees
in the amount of any judgment obtained against such employees in a state or
federal civil administrative action or proceeding, 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/her 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. The duty to indemnify
and save harmless prescribed by this section shall not arise where the injury
or damage resulted from intentional wrongdoing, maliciousness or recklessness
on the part of the employee.
(2)
The Town shall indemnify and save harmless its employees
in the amount of any costs, attorney's fees, damages, fines or penalties
which may be imposed by reason of an adjudication that any employee, acting
within the scope of his/her public employment or duties, has, without willfulness
or intent on his/her part, violated a prior order, judgment, consent decree
or stipulation of settlement entered in any civil administrative action or
proceeding of this state of the United States.
(3)
The Town shall also 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
as follows:
(a)
Within 20 days of an employee's delivery of a summons,
or complaint, process, notice, demand or pleading containing a demand for
punitive damages, the Town Attorney shall make findings and an initial determination
whether the employee should or should not be indemnified against any punitive
damages based upon the facts and circumstances then known to the Town Attorney
as follows:
[1]
Whether the employee's actions were or were not
within the scope of his/her employment.
[2]
Whether the employee's actions were or were not
reckless, malicious, grossly negligent or otherwise outside of the standards
required for employees holding comparable positions with the Town.
[3]
Whether the employee's actions were or were not
made in good faith in the best interest of the Town.
[4]
Whether the employee did or did not willfully violate
a clearly established provision of law or Town policy.
(b)
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
Administrator shall appoint another Town officer to serve instead of the Town
Attorney on the matter under review.
(c)
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 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 to review, make findings,
taking into consideration and giving weight to the initial and any additional
findings made by Town Attorney (provided that the employee did not formerly
misrepresent or omit material facts evidenced at trial), and determine if
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 based on an act or omission
of an employee acting within the scope of his/her employment.
[3]
At the time of the act or omission, the employee acted
in good faith and in the best interests of the Town.
[4]
At the time of the act or omission, the employee did
not willfully violate a clearly established provision of law or Town policy.
(d)
Deliberation, findings and determinations of the Town
Attorney and Town Board shall remain confidential.
D.
The duty to defend or indemnify and save harmless prescribed
by this section shall be conditioned upon:
(1)
Delivery by the employee to the Town Counsel of a written
request to provide for his/her defense together with the original or a copy
of any summons, complaint, process, notice, demand or pleading within 10 days
after he/she is served with such document.
(2)
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.
E.
The benefits of this section 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 Workers' Compensation Law.
F.
This section shall not in any way affect the obligation
of any claimant to give notice to the Town under § 10 of the Court
of Claims Act, § 50-e of the General Municipal Law or any provision
of law.
G.
The Town Administrator is hereby authorized and empowered
to purchase insurance from any insurance company created by or under the laws
of this state, or authorized by law to transact business in this state, against
any liability imposed by the provisions of this section, or to act as a self-insurer
with respect thereto.
H.
All payments made under the terms of this section, 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.
I.
The provisions of this section shall not be construed
to impair, alter, limit or modify the rights or obligations of any insurer
under any policy of insurance.
J.
Except as otherwise specifically provided in this section,
the provisions of this section shall not be construed in any way to impair,
alter, limit, modify, abrogate or restrict any immunity to liability available
to or conferred upon any unit, entity, officer or employee of the Town by,
in accordance with or by reason of any other provision of state or federal
statutory or common law.
K.
Benefits accorded to employees under this section shall
be in supplement to defense or indemnification protection accorded the same
employees by other enactment.
L.
If any provision of this section or the application thereof
to any person or circumstance to 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 provision of this section or the
application of any such provision to any other person or circumstance.
M.
This section shall apply to all actions or proceedings
in which final judgment has not yet been entered.
