[HISTORY: Comes from L.L.
No. 2-1980, adopted 1-8-1980,
effective 1-11-1980.]
As used in this chapter, the following terms shall have the
meanings indicated:
Unless the context otherwise requires, any person holding
a position by election, appointment or employment in the service of
the Town of Hempstead, whether or not compensated, but shall not include
an independent contractor. The term "employee" shall include a former
employee, his estate or judicially appointed personal representative.
The benefits of this chapter shall inure only to "employees" as defined
herein and shall not enlarge or diminish the rights of any other party.
The Town of Hempstead.
The Town Attorney of the Town of Hempstead.
The Town Comptroller of the Town of Hempstead.
A.
The town shall provide for the defense of an 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 within the scope of
his public employment or duties or which is brought to enforce a provision
of Section 1981 or 1983 of Title 42 of the United States Code; provided,
however, that the duty of the town to defend or save harmless shall
be conditioned upon:
(1)
Delivery to the Town Attorney at his offices by the employee 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.
Such delivery shall be deemed a request by the employee that the town
provide for his defense pursuant to this chapter.
(2)
The full cooperation of the employee in the defense of such action
or proceeding and in the defense of any action or proceeding against
the town based upon the same act or omission and in the prosecution
of any appeal.
B.
This duty to provide for a defense shall not arise where such civil
action or proceeding is brought by or on behalf of the Town of Hempstead.
Subject to the conditions set forth in § 11-2 of this chapter, the employee shall be entitled to be represented by the Town Attorney; provided, however, that the employee shall be entitled to representation by private counsel of his choice in any civil judicial proceeding whenever the Town Attorney determines, based upon his 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, upon appropriate motion or by a special proceeding, determines that a conflict of interest exists and that the employee is entitled to be represented by private counsel of his choice. The Town Attorney shall notify the employee, in writing, of such determination that the employee is entitled to be represented by private counsel.
The Town Attorney may require, as a condition to payment of the fees and expenses of such representation by private counsel, that appropriate groups of such employees be represented by the same counsel. If the employee or group of employees is entitled to representation by private counsel under the provisions of § 11-3 of this chapter, the Town Attorney shall so certify to the Town Comptroller. Reasonable attorneys' fees and litigation expenses shall be paid by the town to such private counsel from time to time during the pendency of the civil action or proceeding, subject to certification that the employee is entitled to representation under the terms and conditions of § 11-3 of this chapter by the head of the department, commission, division, office or agency in which such employee is employed and upon the audit and warrant of the Town Comptroller. Any dispute with respect to representation of multiple employees by a single counsel or the amount of litigation expenses or the reasonableness of attorneys' fees shall be resolved by the court upon motion or by way of a special proceeding.
Where the employee delivers process and a request for a defense to the Town Attorney, as required by § 11-2 of this chapter, the Town Attorney shall take the necessary steps, including the retention of private counsel, under the terms and conditions therein provided, 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 town shall indemnify and save harmless its employees in the amount
of any judgment obtained against such employees in any 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 settlement arose occurred
while the employee was acting within the scope of his public employment
or duties. The duty to indemnify and save harmless prescribed by this
subsection shall not arise where the injury or damage resulted from
intentional wrongdoing or recklessness on the part of the employee.
B.
An employee represented by private counsel shall cause to be submitted
to the head of the department, commission, division, office or agency
in which he is employed any proposed settlement which may be subject
to indemnification by the town and, if not inconsistent with the provisions
of this section, such head of the department, commission, division,
office or agency in which he is employed shall certify such settlement
and shall submit such settlement and certification to the Town Attorney.
The Town Attorney shall review such proposed settlement as to form
and amount and shall give his approval if, in his judgment, the settlement
is in the best interest of the town. Nothing in this section shall
be construed to authorize the town to indemnify or save harmless an
employee with respect to a settlement not so reviewed and approved
by the Town Attorney.
C.
Upon entry of a final judgment against the employee or upon the settlement
of the claim, the employee shall cause to be served 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 head of
the department, commission, division, office or agency in which he
is employed, and if not inconsistent with the provisions of this section,
such judgment or settlement shall be certified for payment by such
head of the department, commission, division, office or agency. If
the Supervisor of the Town of Hempstead concurs in such certification,
the judgment or settlement shall be paid upon the audit and warrant
of the Town Comptroller.
Nothing in this chapter 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 Article 7-A of the State Finance Law.
A.
The provisions of this chapter shall not be construed to affect,
alter or repeal any provision of the Workers' Compensation Law.
B.
This chapter shall not in any way affect the obligation of any claimant
to give notice to the town under any provision of law.
C.
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.
D.
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 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.
E.
The provisions of this chapter shall apply to members and employees
of boards or commissions that are public benefit corporations and
whose members are appointed by the Town Board of the Town of Hempstead
although not employees of the Town of Hempstead.
[Added 5-21-1991 by L.L. No. 34-1991, effective 6-28-1991]
The provisions of this chapter shall apply to all actions and
proceedings pending the effective date thereof or thereafter instituted.
