[HISTORY: Adopted by the Town Board of the Town of Chenango 2-22-1982
by L.L. No. 1-1982. Amendments noted where applicable.]
As used in this chapter, the following terms shall have the meanings
indicated:
Includes a former employee, his estate or judicially appointed personal
representative.
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 a public entity,
whether or not compensated, but shall not include an independent contractor.
A.Â
Upon compliance by the employee with the provisions of § 6-3 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 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. Such defense shall not be provided where such civil action or proceeding is brought by or on behalf of the Town.
B.Â
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; 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 a court of
competent jurisdiction determines that a conflict of interest exists and that
the employee cannot be represented by the Attorney. Reasonable attorney's
fees and litigation expenses shall be paid by the Town to such Town Attorney
or private counsel employed and retained as hereinabove set forth, 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 purposes
or with respect to the amount of the fees or expenses shall be resolved by
the court.
C.Â
Where the employee delivers process and a request for a defense to the Town Attorney or the Town Supervisor as required by § 6-3 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.
The duties to defend provided in this chapter shall be contingent upon
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 the full cooperation
of the employee in the defense of any 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 Town Board 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; providing,
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 the settlement
by the governing body of the Town of Chenango.
Except as otherwise provided by law, the duty to indemnify and save
harmless shall not arise where the injury or damage resulted from an intentional
wrongdoing or recklessness on the part of the employee.
Nothing in this chapter shall authorize the Town Board 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 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 Workmen's 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.
This chapter shall not in any way affect the obligation of any claimant
to give notice to the Town of Chenango pursuant to § 50-e of the
General Municipal Law or any other provisions of the 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.
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.