[Adopted 2-10-1981 by L.L. No. 1-1981]
As used in this article, unless the context otherwise requires,
the following terms shall have the meanings indicated:
Any person holding a position by election, appointment or
employment in the service of the Town, whether or not compensated,
or a volunteer expressly authorized to participate in a Town-sponsored
volunteer program, but shall not include an independent contractor.
The term "employee" shall include a former employee, his estate or
judicially appointed personal representative.
The Town of Smithtown.
A.
Upon compliance by the employee with the provisions of § 53-3 of this article, 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 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 a provision of 42 U.S.C. § 1981 or 1983. Such defense shall not be provided where such civil action or proceeding is brought by or on behalf of the Town.
B.
Representation.
(1)
Subject to the conditions set forth in this article, 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:
(a)
The Town does not have a Town Attorney;
(b)
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
(c)
A court of competent jurisdiction determines that a conflict
of interest exists and that the employee cannot be represented by
the Town Attorney.
(2)
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 article.
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.
C.
Where the employee delivers process and a request for a defense to the Town Attorney (or, if none, then to the Town Supervisor) as required by § 53-3 of this article, 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.
The duties to defend (indemnify and save harmless) provided
in this article shall be contingent upon:
A.
Delivery to the Town Attorney (or, if none, to the Town Supervisor)
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
B.
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 article, unless
the employee shall state, in writing, that a defense is not requested.
A.
The Town shall indemnify and save harmless any employee whose defense
was provided pursuant to this article in the amount of any judgment
obtained against such employee or in the amount of any settlement
or compromise approved by the Town Board. The Town shall not indemnify
and save harmless the employee:
B.
Any claim or compromise settlement which may be subject to indemnification
by the Town shall not be paid unless it is presented to and approved
by the Town Board.
C.
Upon entry of a final judgment against the employee, or upon settlement
or compromise of a claim as approved by the Town Board, the employee
shall cause to be served upon the Town Supervisor a copy of such judgment
or settlement, personally or by certified or registered mail, within
30 days of the date of entry or settlement. Such judgment or settlement
shall be processed and paid in the same manner as other judgments
or settlements of claims are paid by the Town.
The benefits of this article 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 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 Civil Service Law Article 14.
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.
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 Town or any right
to defense (and/or indemnification) 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 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.
