[HISTORY: Adopted by the Town Board of the
Town of Cortlandt 6-15-1982 as Res. No. 202-82. Amendments noted where
applicable.]
The Town Board of the Town of Cortlandt has
determined that in order to ensure the continued and future service
of responsible and capable individuals as officials, employees and
appointees of the Town of Cortlandt, it is necessary and proper to
assure that they are afforded protection against individual liability
for actions taken in good health within the scope of their duties
and employment.
The title of this chapter shall be "Defense
and Indemnification of Public Officials and Employees."
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 Cortlandt, 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 Cortlandt.
A.
The town shall provide for the defense of an employee
in any civil action or proceeding in any state or federal court or
administrative action 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 §§ 1981 through 1988 of Title 42 of
the United States Code; provided, however, that the duty of the town
to defend, indemnify or save harmless shall be conditioned upon:
(1)
Delivery to the office of the Town Attorney or, if
none, to the Town Supervisor, by the employee, of the original or
a copy of any summons, complaint, process, notice, demand or pleading
within ten (10) 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, unless the employee shall state
in writing that a defense is not requested.
(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.
[Amended 8-17-1993 by L.L. No. 2-1993]
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 Cortlandt.
Subject to the conditions set forth in § 21-4 of this chapter, the employee shall be entitled to be represented by the Town Attorney or such attorney as provided by the Town's insurance carrier if insurance coverage exists for the allegations complained of; provided, however, that the employee shall be entitled to representation by private counsel of his choice in any civil judicial proceeding whenever the Town Board determines, based upon its investigation and review of the facts and circumstances of the case and upon the recommendations of the Town Attorney, that representation by the Town Attorney would be inappropriate, or whenever the 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 § 21-5 of this chapter, the Town Attorney shall so certify to the financial officer of the Town of Cortlandt. 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 § 21-5 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 Board. 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 as required by § 21-4 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 an employee in the amount of any judgment obtained against such employee in any state or federal court or in any administrative action, or in the amount of any settlement of any claim brought against such employee, provided that the act or omission from which such judgment or settlement arose incurred while the employee was acting or in good faith purporting to act within the scope of his public employment or duties. The duty to indemnify and save harmless prescribed by this subsection shall be conditioned upon the employee's compliance with the requirements set forth in § 21-4A(1) and (2) of this chapter, as well as any other applicable provisions of this section; provided, however, that 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 recommendation
to the Town Board. If the Town Board believes it is in the best interest
of the Town to accept such settlement, it shall give its approval
thereto. 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 Board.
C.
When an employee is represented by the Town Attorney
and the Town Attorney has before him any proposed settlement which
may be subject to indemnification by the Town, the Town Attorney shall,
after reviewing such proposal as to form and content, and after consultation
with and certification of such proposed settlement by the head of
the department, commission, division, office or agency wherein the
employee is employed, give his recommendation to the Town Board. If
the Town Board believes it is in the best interest of the Town to
accept such settlement, it shall give its approval thereto. 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 Board.
D.
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 thirty (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 consistent 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 Town Attorney concurs with such
certification, the judgment or settlement shall be paid upon the audit
and warrant of the Town.
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 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 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.
The provisions of this chapter shall apply to
all actions and proceedings pending upon the effective date thereof
or thereafter instituted.
