[Adopted 7-7-1981 by L.L. No. 30-1981 (Ch. 35, Art. I, of
the 1985 Code)]
This Legislature hereby finds that municipal employees are currently
obligated to bear the legal expenses incurred in defense of allegations
of misconduct in office. This potential financial burden discourages
highly qualified people from seeking and/or accepting employment with
the County of Suffolk. This Legislature intends to exercise its power
to enact legislation authorizing it to defend its officials who, in
the future, may be charged with violating the law in the performance
of their duties. The cost of such defense is to be deemed additional
remuneration necessary to encourage and induce highly qualified people
to accept employment with the County of Suffolk.
[Amended 3-26-1985 by L.L. No. 6-1985]
As used in this article, unless the context otherwise requires,
the following terms shall have the meanings indicated:
The County of Suffolk.
Any person holding a position by election, appointment or employment in the service of the County of Suffolk, including but not limited to volunteers, any person serving as a hearing officer for any County department, any person serving as a traffic prosecutor for the Suffolk County Traffic and Parking Violations Agency ("TPVA"), any person not compensated for his or her services and any member of any board or agency appointed by the County Executive and/or the Legislature, including the Suffolk County Soil and Water Conservation District, in those instances in which the employee of the district is not provided indemnification under § 17, Subdivision 1(k), of the New York Public Officers Law, but shall not include an independent contractor. For purposes of this article and Article IV of this chapter only, a person serving as a hearing officer for any County department or a person serving as a traffic prosecutor for the TPVA shall not be considered an independent contractor. The term "employee" shall include a former employee, his estate or a judicially appointed personal representative.
[Amended 11-21-1997 by L.L. No. 8-1997; 3-22-2016 by L.L. No. 10-2016; 3-7-2017 by L.L. No. 5-2017]
The Suffolk County Legislature.
[Amended 3-26-1985 by L.L. No. 6-1985]
A.
Upon compliance by the employee, peace officer or legislator with
the provisions of § 35-4 of this article, the County shall
provide for the defense of the employee in any civil action or proceeding
in any state or federal court or administrative agency arising out
of any alleged act or omission which occurred or is alleged in the
complaint to have occurred while the employee was acting, or in good
faith purporting to act, within the scope of his public employment
or duties or which is brought to enforce any provisions of Sections
1981 through 1988 of Title 42 of the United States Code. This defense
shall not be provided where such civil action or proceeding is brought
by or on behalf of the County or any agency of the County. The determination
of an issue of whether or not an employee was acting within the scope
of his public employment or duties at the time of the occurrence,
act or omission giving rise to a claim shall be made in the first
instance by the County Attorney.
B.
Subject to the conditions set forth in this article, the employee
shall be represented by the County Attorney or an attorney employed
or retained by the County for the defense of the employee. The County
Attorney shall employ or retain any attorney for the defense of the
employee whenever:
(1)
The County Attorney determines, based upon an investigation and review
of the facts and circumstances of the case, that representation by
the County Attorney would be inappropriate;
(2)
A court of competent jurisdiction determines that a conflict of interest
exists and that the employee cannot be represented by the County Attorney;
or
(3)
The County Attorney determines, based upon an investigation and review
of the facts and circumstances of the case, that representation by
the County Attorney would be inadvisable due to the unavailability
of resources in the Department of Law.
C.
If an employee is entitled to representation by private counsel, pursuant to Subsection B above, the County Attorney shall notify the employee in writing of such determination.
(1)
The employee shall be entitled to select an attorney of his choice
as private counsel; provided, however, that the County Attorney, upon
review of the credentials of said attorney, approves said attorney
as qualified to litigate such matters; and the County Attorney determines,
in advance, the fee to be paid for such representation; and provided
further that no attorney with interests adverse to or in conflict
with the County be selected or permitted to represent employees covered
by this article. It shall be the responsibility of the County Attorney
to determine when an adverse interest exists which would cause the
disqualification of any attorney.
(2)
Reasonable attorney's fees, as determined by the County Attorney,
and litigation expenses shall be paid by the County to such attorney
employed or retained, from time to time, during the pendency of the
civil action or proceeding. Payment of such fees and expenses shall
be made in the same manner as other claims and expenses of the County.
Any dispute with respect to representation of multiple employees by
the County Attorney or by an attorney employed or retained for such
a purpose or with respect to the amount of the fees or expenses shall
be resolved by the court.
D.
Where the employee delivers process and a request for defense to the County Attorney as required by § 35-4 of this article, the County Attorney shall take the necessary steps, including the retention of an attorney under the terms and conditions provided in Subsections B and C above, on behalf of the employee to avoid entry of a default judgment, pending resolution of any question relating to the obligation of the County to provide a defense.
E.
In the event that the act or omission upon which the court proceeding
against the employee is based was or is also the basis of a disciplinary
proceeding by the employee's department or agency against the
employee, then representation by the County Attorney may be withheld
until such disciplinary proceeding has been resolved and unless the
resolution of the disciplinary proceeding exonerates the employee
as to such act or omission.
The duties to defend provided in this article shall be contingent
upon delivery to the County Attorney of the original or a copy of
any summons, complaint, process, notice, demand or pleading within
five days after he is served with such document and upon the full
cooperation of the employee in the defense of such action or proceeding
and defense of any action or proceeding against the County 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 County
provide for his defense pursuant to this article, unless the employee
shall state in writing that a defense is not requested. In the event
that the County Attorney shall assume an employee's defense under
this article and thereafter the employee fails to or refuses to cooperate
in the formation or presentation of his defense, then the County Attorney
may withdraw his representation 10 days after giving written notice
to the employee of his intention to discontinue such representation.
The benefits of this article 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 article be construed
to affect, alter or repeal any provisions of the Workers' Compensation
Law.
The benefits of this article shall be extended to an employee
of a negotiating unit for which an agreement has been negotiated pursuant
to the Civil Service Law, Article 14, only if such agreement expressly
so provides.
The provisions of this article shall not be construed to impair,
alter, limit or modify the rights and obligations of any insurer under
any policy of insurance. The fees and expenses accruing under this
article shall be paid from the County of Suffolk's Self-Insurance
Fund.
As otherwise specifically provided in this article, the provisions
of this article 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 County 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.
[Amended 3-7-2017 by L.L.
No. 5-2017]
A.
Except as provided in Subsection B of this section, the provisions of this article shall apply to all actions and proceedings specified herein which have been commenced, instituted or brought on or after the effective date of this article.
B.
With respect to persons serving as hearing officers for the County,
or persons serving as traffic prosecutors for the TPVA, the provisions
of this article shall apply to all claims, actions, proceedings, or
other litigation made, occurring or accruing on or after the first
date of service rendered by such hearing officers or traffic prosecutors.
