[HISTORY: Adopted by the Town Board of the Town of Mount Pleasant 6-10-1986
by L.L. No. 1-1986. Amendments noted where applicable.]
Pursuant to § 18, Subdivision 2, of the Public Officers Law,
the benefits of the provisions of said § 18 of the Public Officers
Law are hereby conferred upon the employees (as that term is defined is said
§ 18) of the Town of Mount Pleasant, and the Town of Mount Pleasant
shall be liable for the costs incurred under such provisions. Those provisions
are as follows:
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1.
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As used in this section, unless the context otherwise requires:
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(a)
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The term "public entity" shall mean (i) a county, city, town, village
or any other political subdivision or civil division of the state, (ii) a
school district, board of cooperative educational services or any other governmental
entity or combination or association of governmental entities operating a
public school, college, community college or university, (iii) a public improvement
or special district, (iv) a public authority, commission, agency or public
benefit corporation or (v) any other separate corporate instrumentality or
unit of government, but shall not include the State of New York or any other
public entity, the officers and employees of which are covered by § 17
of this chapter or by defense and indemnification provisions of any other
state statute taking effect after January 1, 1979.
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(b)
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The term "employee" shall mean 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 the sheriff of any county or an independent contractor. The term "employee"
shall include a former employee, his estate or judicially appointed personal
representative.
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(c)
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The term "governing body" shall mean the board or body in which the
general legislative, governmental or public powers of the public entity are
vested and by authority of which the business of the public entity is conducted.
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2.
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The provisions of this section shall apply to any public entity.
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(a)
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Whose governing body has agreed by the adoption of local law, bylaw,
resolution, rule or regulation (i) to confer the benefits of this section
upon its employees and (ii) to be held liable for the costs incurred under
these provisions; or
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(b)
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Where the governing body of a municipality, for whose benefit the public
entity has been established, has agreed by the adoption of local law or resolution
(i) to confer the benefits of this section upon the employees of such public
entity and (ii) to be held liable for the costs incurred under these provisions.
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3.
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(a)
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Upon compliance by the employee with the provisions of Subdivision 5
of this section, the public entity shall provide for the defense of the employee
in any civil action or proceeding, state or federal, arising out of any alleged
act or omission which occurred or allegedly occurred while the employee was
acting within the scope of his public employment or duties. This duty to provide
for a defense shall not arise where such civil action or proceeding is brought
by or at the behest of the public entity employing such employee.
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(b)
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Subject to the conditions set forth in Paragraph (a) of this subdivision,
the employee shall be entitled to be represented by private counsel of his
choice in any civil action or proceeding whenever the chief legal officer
of the public entity or other counsel designated by the public entity determine
that a conflict of interest exists or whenever a court, upon appropriate motion
or otherwise by a special proceeding, determines that a conflict of interest
exists and that the employee is entitled to be represented by counsel of his
choice; provided, however, that the chief legal officer or other counsel designated
by the public entity may require, as a condition to payment of the fees and
expenses of such representation, that appropriate groups of such employees
be represented by the same counsel. Reasonable attorneys' fees and litigation
expenses shall be paid by the public entity to such private counsel from time
to time during the pendency of the civil action or proceeding with the approval
of the governing body of the public entity.
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(c)
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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.
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(d)
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Where the employee delivers process and a written request for a defense
to the public entity under Subdivision 5 of this section, the public entity
shall take the necessary steps 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.
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4.
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(a)
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The public entity 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; provided,
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 settlement by the
governing body of the public entity.
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(b)
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Except as otherwise provided by law, the duty to indemnify and save
harmless prescribed by this subdivision shall not arise where the injury or
damage resulted from intentional wrongdoing or recklessness on the part of
the employee.
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(c)
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Nothing in this subdivision shall authorize a public entity 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; provided, however, that the public entity shall
indemnify and save harmless its employees in the amount of any costs, attorneys'
fees, damages, fines or penalties which may be imposed by reason of an adjudication
that an employee, acting within the scope of his public employment or duties,
has, without willfulness or intent on his part, violated a prior order, judgment,
consent decree or stipulation of settlement entered in any court of this state
or of the United States.
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(d)
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Upon entry of a final judgment against the employee, or upon the settlement
of the claim, the employee shall serve 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 chief administrative officer of the public
entity; and if not inconsistent with the provisions of this section, the amount
of such judgment or settlement shall be paid by the public entity.
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5.
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The duty to defend or indemnify and save harmless prescribed by this
section shall be conditioned upon: (i) delivery by the employee to the chief
legal officer of the public entity or to its chief administrative officer
of a written request to provide for his defense, together with the original
or a copy of any summons, complaint, process, notice demand or pleading. within
10 days after he is served with such document and (ii) the full cooperation
of the employee in the defense of such action or proceeding and in defense
of any action or proceeding against the public entity based upon the same
act or omission and in prosecution of any appeal.
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6.
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The benefits of this section 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 section be construed to affect, alter or repeal
any provision of the Workers' Compensation Law.
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7.
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This section shall not in any way affect the obligation of any claimant
to give notice to the public entity under § 10 of the Court of Claims
Act, § 50-e of the General Municipal Law or any other provision
of law.
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8.
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Any public entity is hereby authorized and empowered to purchase insurance
from any insurance company created by or under the laws of this state or authorized
by law to transact business in this state against any liability imposed by
the provisions of this section or to act as a self-insurer with respect thereto.
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9.
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All payments made under the terms of this section, whether for insurance
or otherwise, shall be deemed to be for a public purpose and shall be audited
and paid in the same manner as other public charges.
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10.
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The provisions of this section shall not be construed to impair, alter,
limit or modify the rights and obligations of any insurer under any policy
of insurance.
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11.
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Except as otherwise specifically provided in this section, the provisions
of this section shall not be construed in any way to impair, alter, limit,
modify, abrogate or restrict any immunity to liability available to or conferred
upon any unit, entity, officer or employee of any public entity by, in accordance
with or by reason of any other provision of state or federal statutory or
common law.
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12.
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Except as otherwise provided in this section, benefits accorded to employees
under this section shall be in lieu of and take the place of defense or indemnification
protections accorded the same employees by another enactment, unless the governing
body of the public entity shall have provided that these benefits shall supplement
and be available in addition to defense or indemnification protection conferred
by another enactment.
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13.
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The provisions of this section shall also be applicable to any public
library supported in whole or in part by a public entity whose governing body
has determined by adoption of a local law, ordinance, bylaw, resolution, rule
or regulation to confer the benefits of this section upon the employees of
such public library and to be held liable for the cost incurred under these
provisions.
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14.
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If any provision of this section or the application thereof to any person
or circumstance is held unconstitutional or invalid, in whole or in part,
by any court, such holding of unconstitutionality or invalidity shall in no
way affect or impair any other provision of this section or the application
of any such provision to any other person or circumstance.
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