[HISTORY: Adopted by the Town Board of the Town of Massena: Art.
I, 7-29-1976; Art. II, 7-7-1980 by L.L.
No. 1-1980. Amendments noted where applicable.]
[Adopted 7-29-1976]
The Supervisor is hereby delegated the power to authorize the attendance
of any official or employee of the Town of Massena at any schools, conventions,
conferences and meetings conducted for the betterment of municipal government
and believed to be of benefit to the municipality.
Municipal officials and employees shall be reimbursed by the town for
all actual and necessary registration fees not in excess of $50, all actual
and necessary expenses of travel meals and lodging and all necessary tuition
fees incurred in connection with the attendance at such schools, conventions,
conferences and meetings.
[Adopted 7-7-1980 by L.L. No. 1-1980]
The purpose of this article is to provide legal and financial protection
for those individuals serving the Town of Massena, from losses which may be
brought against them in their individual capacity for actions taken while
in the performance of their official duties and responsibilities. In enacting
this article, the Town Board finds that the State of New York has enacted
similar provisions for the legal and financial security of its officers and
employees and further finds that such security is also required for local
personnel. By enactment of this article, the Town Board does not intend to
limit or otherwise abrogate any existing right or responsibility of the town
or its employees with regard to indemnification or legal defense. It is solely
the intent of this article to provide similar coverage for local employees
as is presently provided for state employees, so as to continue to attract
qualified individuals to local government service.
As used in this article, unless the context otherwise requires, the
following terms shall have the meanings indicated:
Any person holding a position by election, appointment or employment
in the service of the town, but shall not include a volunteer, any person
not compensated for his services or an independent contractor. The term "employee"
shall include a former employee, his estate or judicially appointed personal
representative.
The Town of Massena.
A.
Upon compliance by the employee with the provisions of § 62-6 of this article, 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 article,
the employee shall be represented by the Town Attorney or any attorney employed
or retained by the town for the defense of the employee. The Town Board shall
employ or retain any 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 attorney's 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 article. 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 any 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 in § 62-6 of this article, the Town Attorney or the Supervisor, as the case may be, shall take the necessary steps including the retention of any 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.
The duties to defend provided in this article shall be contingent upon
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 days after he is served with such document and the full cooperation of
the employee in the defense of such action or proceeding and defense of any
action or proceeding against the town based upon the same omission, and in
the prosecution of any appeal. Such delivery shall be deemed a request by
the employee that the town provide for his defense pursuant to this article,
unless the employee shall state in writing that a defense is not requested.
A.
The town shall indemnify and save harmless its employees
in the amount of any judgment obtained against such employees in any 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 settlement arose occurred
while the employee was acting within the scope of his public employment of
duties. 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.
B.
An employee represented by private counsel shall cause
to be submitted to the Town Board any proposed settlement which may be subject
to indemnification by the town and if not inconsistent with the provisions
of this section, the Supervisor shall certify such settlement, and submit
such settlement and certification to the Town Attorney. The Attorney shall
review such proposed settlement as to form and amount, and shall give his
approval if in his judgment the settlement is in the best interest of the
town. Nothing in this section shall be construed to authorize the town to
indemnify or save harmless any employee with respect to a settlement not so
reviewed and approved by the Town Attorney.
C.
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 Supervisor
and if not inconsistent with the provisions of this section, such judgment
or settlement shall be certified for payment by such Supervisor. If the Attorney
concurs in such certification, the judgment or settlement shall be paid upon
the audit and warrant of the Supervisor.
The duty to defend or indemnify and save harmless provided by this article
shall be conditioned upon delivery to the Town Attorney or the Supervisor,
at this office, by the employee of 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 the full cooperation of the employee in the
defense of such action or proceeding and in defense of any action or proceeding
against the state based upon the same act or omission, and in the prosecution
of any appeal. Such delivery shall be deemed a request by the employee that
the town provide for his defense pursuant to this article.
The benefits of this article 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 article be construed to affect, alter or repeal
any provisions of the Workers' Compensation Law.
The benefits of this article 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 article 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 article, the provisions of
this article 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 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 article shall apply to all actions and proceedings
specified herein which have been commenced, instituted or brought on or after
the effective date of this article.
