[HISTORY: Adopted by the Town Board of the Town of Dover 5-12-1986
by L.L. No. 3-1986. Amendments noted where applicable.]
As used in this chapter, unless the context otherwise requires, the
following items shall have the meanings indicated:
Any person holding a position by election, appointment or employment
in the service of the town, whether or not compensated for his services, but
shall not include a volunteer or an independent contractor. The term "employee"
shall include a former employee, his estate or judicially appointed personal
representative.
The Town of Dover, Dutchess County, New York.
A.
Upon compliance by the employee with the provisions of § 13-4 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.
Subject to the conditions set forth in this chapter,
the employees 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 Town Attorney. Reasonable attorneys'
fees and litigation expenses shall be paid by the town to such attorney employed
or retained, 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.
Where the employee delivers process and a request for a defense to the Town Attorney or the Town Supervisor as required by § 13-4 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.
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 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 Town Board.
B.
Except as otherwise provided by law, the duty to indemnify
and save harmless prescribed by this section shall not arise where the injury
or damage resulted from intentional wrongdoing or recklessness on the part
of the employee.
C.
Nothing in this section 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 § 51
of the General Municipal Law; provided, however, that 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 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.
D.
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 Supervisor, and if not
inconsistent with the provisions of this section, the amount of such judgment
or settlement shall be paid by the public entity.
A.
The duty to defend provided in this chapter shall be
contingent upon:
(1)
Delivery by the employee to the Town Attorney or to the
Supervisor of the Town of Dover 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
(2)
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.
B.
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 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 Workers' 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 the Civil Service
Law, Article 14, only if such agreement expressly so provides.
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 to liability 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.
