[HISTORY: Adopted by the Town Board of the Town of Putnam Valley 12-28-1994
by L.L. No. 15-1994. Amendments noted where applicable.]
The Town Board of the Town of Putnam Valley 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 Putnam Valley, it is
necessary and proper to assure that they are afforded protection against individual
liability for actions taken in good faith 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:
Any attorney that provides legal services to the town on a contractual
basis.
Unless the context otherwise requires, any person holding a position
by election, appointment or employment in the service of the Town of Putnam
Valley on or after January 1, 1981, notwithstanding when the alleged improper
act occurred or is alleged to have occurred and whether or not the employee
is compensated, but shall not include an independent contractor other than
those employed on a regular and continuing basis, such as the Town Planner,
Police Consultant, counsel to the town, etc., and shall include a former employee,
the employee's 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 Putnam Valley.
The Town Attorney of the Town of Putnam Valley, or Acting Town Attorney
in the event that there is no Town Attorney and the Town Board has appointed
an Acting Town Attorney in his or her stead during the interim.
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 or her public employment and
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 Clerk by the employee
of the original or a copy of any summons, complaint, process, notice, demand
or pleading within 10 days after he or she is served with such document with
a written request by the employee that the town provide for his or her 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.
(3)
A finding by the Town Attorney or the counsel to the
Town Supervisor that the alleged action or omission on the action which is
brought to enforce a provision of U.S.C. §§ 1981 through 1988
occurred while the employee was acting within the scope of his or her public
employment and in the discharge of his or her duties.
(4)
The individual is an employee, as heretofore defined
herein, on or after January 1, 1980.
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
Putnam Valley.
Subject to the conditions set forth herein, the employee shall be entitled
to be represented by the Town Attorney or counsel to the town; provided, however,
that the employee shall be entitled to representation by private counsel of
his or her 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 recommendation of the Town Attorney or counsel to the
town, that representation by the Town Attorney or counsel to the town would
be inappropriate or whenever a court of competent jurisdiction, upon appropriate
motion or by special proceeding, determines that a conflict of interest exists
and that the employee is entitled to be represented by private counsel of
his or her choice. The Town Attorney or counsel to the town shall notify the
employee, in writing, of such determination that the employee is entitled
to be represented by private counsel.
The Town Attorney or counsel to the town 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 § 13-5 of this chapter, the Town Attorney or counsel to the town shall so certify to the Town Board. 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 § 13-5 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 Supervisor.
A.
Where the employee delivers process and a request for a defense to the Town Attorney or counsel to the town, as required by § 13-4 of this chapter, the Town Attorney or counsel to the town shall take the necessary steps, including the retention of private counsel or the notification to the town's insurance company on behalf of the town and the employee to avoid entry of a default judgment pending resolution of any question pertaining to the obligation to provide for a defense.
B.
Anything to the contrary notwithstanding the Town Board
shall be authorized to obtain insurance coverage to provide for the defense
of any employee and indemnification of the town for any claim made in accordance
herewith, and the employee shall be obligated to use counsel provided by the
insurer, or if the employee refuses legal counsel provided by the insurer,
then the employee shall be obligated to provide for his or her own legal defense
at his or her own expense, and neither the town nor its insurer shall be liable
for any claim against said employee.
A.
The town shall indemnify and save harmless an employee in the amount of any judgment, including a judgment that includes punitive or exemplary damages 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 or occurred while the employee was acting or in good faith purporting to act within the scope of his or her public employment and duties. The duty to indemnify and save harmless prescribed by this section shall be conditioned upon the employees eligibility and compliance with the requirements set forth in § 13-3 and Subsection A(1) through (4) of § 13-4 of this chapter.
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 or she 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 or she is employed shall certify such settlement
and shall submit such settlement and certification to the Town Attorney or
counsel to the town. The Town Attorney or counsel to the town shall review
such proposed settlement as to form and amount and shall give his or her 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. 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.
Any proposed settlement, notwithstanding who represents
an employee, which may be subject to indemnification by the town must be submitted
to the Town Attorney or counsel to the town who 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 or her 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 30 days of the date of entry or settlement, upon the head of the
department, commission, division, office or agency in which he or she 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 Town Attorney concurs in such
certification, the judgment or settlement shall be paid upon the audit and
warrant of the Supervisor.
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 provisions of this chapter be construed to affect, alter
or repeal any provisions 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 other 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,
or in accordance with or by reason of any other provision.
E.
Withholding of defense and indemnification. 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 town
against the employee, representation and indemnification by the town may be
withheld until such disciplinary proceeding has been resolved. If the resolution
of the disciplinary proceeding exonerated the employee as to such act or omission,
defense and indemnification shall be provided to the employee. However, defense
and indemnification may not be withheld because a judgment involves punitive
or exemplary damages.
The provisions of this chapter shall apply to all actions and proceedings
upon the effective date hereof or thereafter instituted.
