[HISTORY: Adopted by the Town Board of the Town of Pompey 2-9-1981 by L.L. No. 1-1981. Amendments noted where applicable.]
[Amended 12-4-1995 by L.L. No. 5-1995]
As used in this chapter, unless the context otherwise requires, 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, whether or not compensated, but shall not include an independent contractor. The term "employee" shall include a former employee, his estate or a judicially appointed personal representative.
The Town of Pompey.
A.
In accordance with the provisions of § 18 of the Public Officers Law, upon compliance by the employee with the provisions of § 17-3 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 while the employee was acting or in good faith purporting to act within the scope of his public employment or duties. Such defense shall not be provided where such civil action or proceeding is brought by or on behalf of the Town.
[Amended 12-4-1995 by L.L. No. 5-1995]
B.
Representation.
(1)
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 the Town does not have a Town Attorney; whenever 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 whenever 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 the 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 purpose or with respect to the amount of the fees or expenses shall be resolved by the court.
(2)
The employee shall be entitled to be represented by private counsel of his choice in any civil action or proceeding whenever the Town Attorney or other counsel designated by the Town 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 designated by the Town 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.
[Added 12-4-1995 by L.L. No. 5-1995]
C.
Where the employee delivers process and a written request for a defense to the Town Attorney or the Town Supervisor as required by § 17-3 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.
[Amended 12-4-1995 by L.L. No. 5-1995]
[Amended 12-4-1995 by L.L. No. 5-1995]
The duty to defend provided in this chapter shall be contingent upon delivery to the Town Attorney or, if none, to the Town Supervisor of a written request to provide for the employee's defense and the original or a copy of any summons, complaint, process, notice, demand or pleading within 10 days after the employee is served with such document and 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 his defense pursuant to this chapter, unless the employee shall state, in writing, that a defense is not requested.
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 provision of this chapter be construed to affect, alter or repeal any provisions of the Workers' 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.
[Added 12-4-1995 by L.L. No. 5-1995]
A.
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 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.
B.
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.
C.
Nothing in this section shall authorize the Town 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 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 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.
D.
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 Town Supervisor, and, if not inconsistent with the provisions of this chapter, the amount of such judgment or settlement shall be paid by the Town.
[Added 12-4-1995 by L.L. No. 5-1995]
This chapter 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 other provision of law.
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.
[Amended 12-4-1995 by L.L. No. 5-1995]
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 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 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.
