Town of Manlius, NY Chapter 7 Defense and Indemnification

[HISTORY: Adopted by the Town Board of the Town of Manlius 3-13-1991 as Ch. 300 of the 1991 Code. Amendments noted where applicable.]

GENERAL REFERENCES

Code of Ethics — See Ch. 14.

Residency requirements — See Ch. 28.

§ 7-1 Definitions.

As used in this chapter, the following terms shall have the following meanings:

LOSS

Any amount which the representatives are legally obligated to pay for any claim or claims made against them for wrongful acts and shall include, but not be limited to, damages, judgment, settlements and costs, cost of investigation and defense of legal issues (excluding from such costs the salaries of officials or employees of the town or any other governmental body), claims or proceedings or appeals, cost of attachment or similar bonds (but without any obligation to apply for or furnish any such bonds); provided, always, however, that such subject of loss shall not include fines or penalties imposed by law, amounts due and payable under the terms of any contractual obligation or matters which may be held not to be unreimbursable as a matter of public policy.

REPRESENTATIVE

All persons who were, now are or shall be lawfully elected or lawfully appointed officials of the town government. The term shall include members of such commissions, boards or other units operating by and under the jurisdiction of the town government. The term shall also include full-time employees as may be responsible to the town government or to its commissions, boards or other units. The term "representative" shall not include any person working solely on a retainer or contractual agreement or any employee working less than twenty (20) hours per week.

TOWN

The Town of Manlius and any of its associated agencies, bodies and departments.

WRONGFUL ACT

Any actual or alleged error or misstatement or act or omission or neglect or breach of duty, including misfeasance, malfeasance and nonfeasance, by any representatives of the town in the discharge of their duties for the town, individually or collectively. The term shall not include any of the following acts or any act based upon or arising out of any one (1) of the following acts:

A. An act which gains any personal profit or advantage to which any representative is not legally entitled.

B. The return by any representative of any remuneration paid in fact to him if payment of such remuneration shall be held by the courts to be in violation of law.

C. Any act brought about or contributed to by the dishonesty of the representatives; however, notwithstanding the foregoing, the representatives shall be protected under this chapter as to any claims upon which suit is brought against them by reason of any alleged dishonesty on the part of the representatives, unless a judgment or other final adjudication thereof adverse to the representatives shall establish that acts of active and deliberate dishonesty committed by the representatives with actual dishonest purpose and intent were material to the cause of action so adjudicated.

D. An act which creates claims, demands or actions seeking relief or redress in any form other than money damages.

E. An act which creates a claim for fees or expenses relating to claims, demands or actions seeking relief or redress in any form other than money damages.

F. An act causing damages, whether direct, indirect, or consequential, arising from or caused by bodily injury, personal injury, mental anguish, sickness, disease or death.

G. An act causing loss or criminal abstraction of damage to or destruction of any tangible property or the loss of use of such property.

H. False arrest, assault and battery, detention or imprisonment, malicious prosecution.

I. Any defamation, including but not limited to libel, slander, defamation of character and invasion of privacy.

J. Any publication or utterance in the course of or related to advertising, broadcasting or telecasting activities conducted by or on behalf of the town.

K. Wrongful entry or eviction or other invasion of the right of private occupancy.

L. Damages arising from inverse condemnation, adverse possession or dedication by adverse use.

M. Strikes, riots or civil commotions.

N. Any willful violation of statute or ordinance committed by or with the knowledge or consent of a representative.

O. The discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any watercourse or body of water.

P. Any act conducted in a fiduciary capacity as respects any employee benefit plan.

Q. Any claim based upon or attributable to the rendering or failure to render any opinion, treatment, consultation or service if such opinion, treatment, consultation, or service was rendered or failed to have been rendered while any representative was engaged in any activity for which he or she received compensation from any source other than the Town of Manlius or was gratuitously engaged other than by specific direction of the Town of Manlius.

R. Any act of an attorney, architect, engineer or accountant while acting in the scope of his or her professional duties.

§ 7-2 Indemnity of representatives.

Upon compliance by the representative or representatives with the provisions of this chapter, the town shall provide for the defense of the representative or representatives in any civil action or proceeding in any state or federal court arising out of any alleged wrongful act which occurred or is alleged in the complaint to have occurred while the representative or representatives were acting or in good faith purporting to act within the scope of this or their public employment duties. In addition, the town shall reimburse the representatives for any loss suffered by said representatives as a result of a wrongful act, as defined in this chapter. Such defense or reimbursement shall not be provided where such civil action or proceeding is brought by or on behalf of the town.

§ 7-3 Representation by Town Attorney; costs.

A. Subject to the conditions set forth in this chapter, the representative or representatives shall be represented by the Town Attorney or an attorney employed or retained by the town for the defense of the representatives. The Town Board shall employ or retain an attorney for the defense of the representative or representatives whenever:

(1) The town does not have a Town Attorney;

(2) 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;

(3) A court of competent jurisdiction determines that a conflict of interest exists and that the representative or representatives cannot be represented by the Town Attorney; or

(4) The Town Board determines that an independent attorney is necessary in order to obtain full reimbursement from an insurance company.

B. 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 representative or representatives are 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 representatives 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 of competent jurisdiction.

C. Where the representative or representatives deliver process and a request for a defense to the Town Attorney or the Town Supervisor as required by 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 this section of this chapter, on behalf of the representative or representatives to avoid entry of a default judgment, pending resolution of any question relating to the obligation of the town to provide a defense.

§ 7-4 Conditions for defense.

The duties to defend provided in this chapter shall be contingent upon:

A. Delivery to the Town Attorney or, if none, to the Town Supervisor of the original or a copy of any summons, complaint, process, notice, demand or pleading within five (5) days after the representative is served with such document.

B. The full cooperation of the representative or representatives in the defense of such action or proceeding and defense of any action or proceeding against the town based upon the same act or omission and in the prosecution of any appeal. Such delivery shall be deemed a request by the representative or representatives that the town provide for their defense pursuant to this chapter unless the representative or representatives shall state, in writing, that a defense is not requested.

§ 7-5 Limit of reimbursement.

The limit of reimbursement under this chapter by the town shall be the limit of liability in the pertinent public officials' and employees' liability insurance policy maintained by the town, and all representatives shall cooperate fully with said insurer, and failure to so cooperate shall be a waiver of any rights of said representative under this chapter.

§ 7-6 Applicability; construal of provisions.

A. The benefits of this chapter will enure only to representatives as defined herein and shall not enlarge or diminish the rights of any party, nor shall any provision of this chapter be construed to affect, alter or repeal any provisions of the Workers' Compensation Law.

B. 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.

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. Unless 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 provided for any governmental representative by, in accordance with or by reason of any other provision of state or federal statutory or common law.

E. 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.