[HISTORY: Adopted by the Town Board of the Town of Bethel 12-28-1993 by L.L. No. 2-1993. Amendments noted where applicable.]
The New York State Legislature has enacted legislation permitting public entities, including towns, to provide for the defense and indemnification of officers and employees of the Town. This chapter implements that concept and the statutory intent set forth in Article 2, § 18, of the Public Officers Law of the State of New York.
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 Bethel, Sullivan County, New York (hereinafter referred to as "Town of Bethel"), whether or not compensated. The term "employee" shall include a former employee, his estate or judicially appointed personal representative.
Upon compliance by the employee with the provisions of § 24-5 of this chapter, the Town of Bethel, New York, shall provide for the defense and indemnification of the employee in any civil action or proceeding, state or federal, arising out of any alleged act or omission which occurred or allegedly occurred while the employee was acting during the course of his employment and within the scope of his public employment or duties. This duty to provide for a defense and indemnification shall not arise where such civil action or proceeding is brought by, or at the behest of, the Town of Bethel.
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 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 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 attorney's fees and litigation expenses shall be paid by the Town to such attorney employed or retained, from time to time, during pendency of the civil action or proceeding, subject to certification by the Town 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 upon motion or by way of a special proceeding.
Where the employee delivers process and a written request for a defense to the Town of Bethel, under § 24-5 of this chapter, the Town of Bethel shall take the necessary steps 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 Town of Bethel 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 i) the act or omission from which such judgment or claim arose occurred while the employee was acting within the scope of his or her public employment or duties; or ii) 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 of Bethel or its insurer. This obligation by the Town of Bethel to indemnify shall not apply to any claims against employees of the Town of Bethel, currently outstanding, or reduced to judgment or settlement.
Except as otherwise provided by law, the duty to 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.
Nothing herein shall authorize the Town Board of the Town of Bethel 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 § 51 of the General Municipal Law; provided, however, that the Town Board of the Town of Bethel 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.
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 five days of the date of entry or settlement, upon the Clerk of the Town Board of the Town of Bethel and the Town Supervisor of the Town of Bethel, and, if not inconsistent with the provisions of this chapter, the amount of such judgment or settlement shall be paid by the Town of Bethel.
The duty to defend or indemnify and save harmless prescribed by this chapter shall be conditioned upon:
Delivery by the employee to the Town Attorney and to the Clerk of the Town Board of the Town of Bethel a written request to provide for his defense, together with the original or a copy of any summons, complaint, process, notice, demand or pleading within 10 days after he is served with such document; 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 of Bethel based upon the same act or omission, and in the prosecution of any appeal.
The benefits of this chapter shall inure only to employees as deemed 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 Worker's Compensation Law.
This chapter shall not in any way affect the obligation of any claimant to give notice to the Town of Bethel under Section 10 of the Court of Claims Act, § 50-e of the General Municipal Law, or any other provisions of law.
The Town of Bethel is hereby authorized and empowered to purchase insurance from any insurance company created by, or under, the laws of the State of New York, or authorized by law to transact business in this state, against any liability imposed by the provisions of this chapter, or to act as a self-insurer with respect thereto.
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.
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 to liability available to, or conferred upon, any unit, entity, officer or employee of the Town of Bethel by, in accordance with or by reason of any other provision of state or federal statutory or common law.
Except as otherwise provided in this chapter, benefits accorded to employees under this chapter shall supplement, and be available in addition to, defense or indemnification protection conferred by any other enactment of the Town Board of the Town of Bethel, or common law. Notwithstanding anything contained herein to the contrary, the Town of Bethel shall be entitled to contribution and/or indemnification by the employee and/or other agency in the event that such other agency is also obligated to provide a defense for the employee and/or pay any sums of monies by way of indemnification and/or judgment or award.
The provisions of this chapter shall apply to all actions or proceedings specified herein which have been commenced, instituted or brought on or after the effective date of this chapter.
Notwithstanding anything to the contrary contained herein, there shall be no duty of the Town of Bethel to defend or indemnify any employee unless the Town Board finds that:
The claim arose during the course of his normal employment and within the scope of his employment in a matter in which the Town of Bethel had an interest;
The employee was acting in discharge of a duty imposed or authorized by law; and
The employee acted in good faith and without malice.
In the event the Town assumes the duty of defense and in the event a court determines that the employee acted in bad faith or with malice or in a wanton or wilful manner so as to cause the claim, or was not acting in a bona fide discharge of his or her municipal duties, the employee shall reimburse the Town for all expenses incurred for defense of claims arising out of the alleged civil action or civil proceeding. Upon such finding by a court, the Town shall have no duty to satisfy any judgment or claim against the employee, and, in the event the Town has satisfied or is ordered to satisfy said judgment or claim, the employee must reimburse the Town for any sum paid for the said satisfaction.