[HISTORY: Adopted by the Town Board of the Town of Chatham 5-18-2006
by L.L. No. 3-2006. Amendments noted where applicable.]
GENERAL REFERENCES
Code of Ethics — See Ch. 9.
As used in this chapter, unless the context otherwise requires:
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 the Town, whether
or not compensated. The term "employee" shall include a former employee, his/her
estate or judicially appointed personal representative.
The Town of Chatham and its departments and agencies.
Upon compliance by the employee with the provisions of § 4-4 of this chapter, the Town shall provide for the defense of the employee in any civil administrative 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/her public employment or duties. This duty to provide for a defense shall not arise where such civil administrative action or proceeding is brought by or at the behest of the Town.
A.
The Town shall indemnify and save harmless its employees
in the amount of any judgment obtained against such employees in a state or
federal civil administrative action or proceeding, 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/her 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 Town. The duty to indemnify
and save harmless prescribed by this section shall not arise where the injury
or damage resulted from intentional wrongdoing, maliciousness, or recklessness
on the part of the employee.
B.
The Town 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 any employee acting within
the scope of his/her public employment or duties has, without willfulness
or intent on his/her part, violated a prior order, judgment, consent decree
or stipulation of settlement entered in any civil administrative action or
proceeding of this state of the United States.
C.
Punitive damages; confidentiality.
(1)
The Town shall also indemnify and save harmless its employees
in the amount of any punitive damages in accordance with the following procedure
and such additional procedures as may be established by the Town Attorney
as follows:
(a)
Findings and determination by Town Attorney; Town Attorney
as defendant. Within 20 days of employee's delivery of a summons, or complaint,
process, notice, demand or pleading containing a demand for punitive damages,
the Town Attorney shall make findings and an initial determination whether
the employee should or should not be indemnified against any punitive damages,
based upon the facts and circumstances then known to the Town Attorney as
follows:
[1]
Whether the employee's actions were or were not within
the scope of his/her employment;
[2]
Whether the employee's actions were or were not reckless,
malicious, grossly negligent or otherwise outside of the standards required
for employees holding comparable positions with the Town;
[3]
Whether the employee's actions were or were not made
in good faith in the best interest of the Town policy.
(b)
In the event the Town Attorney is a named defendant in
an action or proceeding or cannot serve for any other reason, the Town Administrator
shall appoint another Town officer to serve in the stead of the Town Attorney
on the matter under review.
(2)
In the event of a final judgment of punitive damages
against the employee, the employee shall serve copies of such judgment personally
or by certified or registered mail within 10 days of entry upon the Town Attorney
and upon the Town Clerk on behalf of the Town Board. The Town Board shall
meet as soon as practicable in executive session to review, make findings
taking into consideration and giving weight to the initial and any additional
findings made by Town Attorney (provided the employee did not formerly misrepresent
or omit material facts evidenced at trial), and determine if the following
have been met, and if so met, said Board shall appropriate the funds necessary
to pay such punitive damages:
(a)
The judgment of punitive damages is based on an act or
omission of the employee acting within the scope of his/her employment;
(b)
At the time of the action or omission giving rise to
the liability, the employee acted without recklessness, without maliciousness,
without gross negligence, and otherwise within the standards required for
employees holding comparable positions within the Town;
(c)
At the time of the act or omission, the employee acted
in good faith and in the best interest of the Town; and
(d)
At the time of the act or omission, the employee did
not willfully violate a clearly established provision of law or Town policy.
(3)
Deliberations, findings and determinations of the Town
Attorney and the Town Board shall remain confidential.
The duty to defend or indemnify and save harmless prescribed by this
chapter shall be conditioned upon:
A.
Delivery by the employee to the Town Counsel of a written
request to provide for his/her defense, together with the original or a copy
of any summons, complaint, process, notice, demand or pleading within 10 days
after he/she is served with such document.
B.
The full cooperation of the employee in the defense of
such action or proceeding, and in defense of any action or proceeding against
the Town based upon the same act or omission, and in the prosecution of any
appeal.
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, nor
shall any provision of this chapter be construed to affect, alter or repeal
any provision of the Workers' Compensation Law.
This chapter shall not in any way affect the obligation of any claimant
to give notice to the Town under § 10 of the Court of Claims Act,
§ 50-c of the General Municipal Law, or any provision of law.
The Town Administrator 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 chapter or to act as a self-insurer
with respect thereto.
All payments made under the terms of this chapter, whether for insurance
of otherwise, shall be deemed to be for a public purpose and shall be audited
and paid in the same manner as other public charges.
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.
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 to liability available to or conferred
upon any unit, entity, officer or employee of the Town by, in accordance with,
or by reason of any other provision of state or federal statutory or common
law.
Benefits accorded to employees under this chapter shall be in supplement
to defense or indemnification protection accorded the same employees by other
enactment.
If any provision of this chapter or the application thereof to any person
or circumstance be 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 provisions of this chapter or the application of
any such provision to any other person or circumstance.
This chapter shall apply to all actions or proceedings in which final
judgment has not yet been entered.
