[HISTORY: Adopted by the Town Board of the
Town of Rhinebeck 3-22-2010 by L.L. No. 1-2010.[1] Amendments noted where applicable.]
[1]
Editor's Note: This local law also repealed former Ch. 11,
Defense and Indemnification, adopted 7-13-1987.
This chapter provides for the defense and indemnification
of municipal officials, appointees and employees of the Town of Rhinebeck
who are sued 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 Town Board of the
Town of Rhinebeck 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 the intent of this chapter to provide similar
civil suit coverage for Town of Rhinebeck 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 federal, state or local court or administrative agency.
Any elected official, 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 Rhinebeck, whether or not
compensated or working full-time or part-time, but shall not include
the sheriff of any county, or an independent contractor, or member
of any police force maintained by any other municipality. "Employee"
shall also include a former employee of the Town of Rhinebeck, his
estate or judicially appointed personal representative.
The Town of Rhinebeck.
A.
The provisions
of this chapter shall apply to all actions and proceedings pending
upon the effective date thereof or thereafter instituted, whether
or not the actions or commissions complained of occurred prior to
or subsequent to the effective date of this chapter.
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,
or employee 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 shall defend, indemnify and save harmless its
employees from any civil action or proceeding brought in any 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 or appointing such employee.
B.
Judgment
or settlement. The Town shall defend, indemnify and save harmless
its employees in the amount of any judgment obtained against such
employees in any 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 review by the Attorney for the Town, 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 settlement not so reviewed by the Attorney for the Town
and approved by the Town Board.
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 represented by the Attorney for the
Town or other attorney designated by the Town. The employee shall
be entitled to be represented by private counsel of his choice, at
rates prevailing in the local legal community, in any civil action
or proceeding whenever the Attorney for the Town 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 Attorney for the Town 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 Attorney for the Town 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 Attorney for the Town
on the matter under review.
E.
Fees. Reasonable
and necessary attorneys’ fees and litigation expenses shall
be paid by the Town to the Attorney for the Town or such other private
counsel, as applicable, 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.
Exceptions to indemnification. Except as otherwise provided by law, the duty to defend, indemnify and save harmless prescribed by this section shall not arise (1) where the injury or damage resulted from intentional wrongdoing or recklessness on the part of the employee; (2) where a judgment is obtained or a claim settled as a result of an action or proceeding brought by or at the behest of the Town itself; (3) with respect to nonautomatic punitive or exemplary damages, fines or penalties, except as provided in § 11-6 or (4) where the employee was not acting in good faith. 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 purporting to act within the scope of his employment or duties or if any of the exceptions in the preceding sentence apply. Such determination shall be made after a full investigation into the allegations of the complaint by the office of the Attorney for the Town, 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 or if any of the exceptions in the second preceding sentence apply, the Town shall bear no legal expense on behalf of such employee, nor shall it indemnify the employee for any judgment obtained against him or with respect to any settlement; further, if, after an initial determination that the employee was entitled to the benefits of this chapter, 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, entitled to the benefits of this chapter, the Town shall bear no legal expense on behalf of such employee, nor shall it indemnify the employee for any judgment obtained against him or with respect to any settlement.
Upon the 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 for such judgment or settlement,
upon the Town and upon the Attorney for Town and, if not inconsistent
with the provisions of this chapter, the amount of such judgment or
settlement shall be paid by the Town.
The Town shall defend, indemnify, and save harmless its employees in the amount of any punitive or exemplary damages, fines or penalties arising from a claim pursuant to § 11-4 of this chapter, in accordance with the following procedure and such additional procedures as may be established by the Attorney for the Town:
A.
In the event
of a final judgment of punitive or exemplary damages, fines or penalties
against the employee, the employee shall serve copies of such judgment
personally or by certified or registered mail within 30 days of the
date of entry upon the Attorney for the Town 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 or exemplary damages, fines or penalties:
(1)
The
judgment of punitive or exemplary damages, fines or penalties 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.
B.
Notwithstanding
the foregoing, the provisions hereof shall not be construed to 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.
The duty to defend, indemnify and save harmless provided by § 11-4 of this chapter shall be conditioned upon: (i) delivery to the Town Clerk, at Town Hall, or to the Attorney for the Town, at his office, of the original and a copy of all papers served upon the employee, including any summons, complaint, process, notice, demand or other pleading or writ within 10 days after the service has been made, and (ii) the full cooperation of the employee in the defense of such action or proceeding, 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 provide for his defense pursuant to this chapter.
Where the employee delivers the papers served upon him to the Attorney for the Town in accordance with the provisions set forth in § 11-7 of this chapter, the Attorney for the Town shall take the necessary steps, including the retention of private counsel, where appropriate, under the terms and conditions provided in § 11-4D of this chapter, 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 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.
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.
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.
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.
A.
All references
to gender herein are for convenience only and shall in every instance
be read as including individuals of both genders.
B.
All references
to the singular or plural contained herein shall be read to include
the other.
C.
Titles
and headings found in this chapter are for reference only.
