[HISTORY: Adopted by the Town Board of the Town of Westfield 3-20-1996
by L.L. No. 1-1996. Amendments noted where applicable.]
The purpose of this chapter is to provide representation and indemnification
to the extent set out herein for elected and appointed officials, as well
as other public employees, who are sued civilly in their individual capacities
for alleged acts or omissions while they were acting within the scope of their
official duties. In enacting this chapter, 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 similar security is also
required for those in service for the Town of Westfield.
As used in this chapter, 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 of Westfield, whether or not compensated, or a
volunteer expressly authorized to participate in a municipally sponsored volunteer
program, but shall not include an independent contractor. The term "employee"
shall include a former employee, his estate or judicially appointed personal
representative.
A.
Upon strict compliance by the employee with the provisions of § 14-5 of this chapter and upon the written recommendation of the Attorney for the town that the act or omission alleged occurred within the scope of the employee's public employment or duties and such act or omission was done in good faith, without malice and without intentional or reckless conduct, and that there is not insurance carried by the Town of Westfield that will respond to the action or proceeding brought against the employee, then the town shall provide for the defense of the employee in any civil action or proceeding in any state or federal court to the extent herein set out and arising out of any alleged act or omission which occurred, or is alleged in the complaint to have occurred, while the employee was acting in good faith and without malice and without intentional or reckless conduct and within the scope of his public employment or duties, or which is brought to enforce a provision of § 1981 or § 1983 of Title 42 of the United States Code. This duty to provide for a defense shall not arise where such civil action or proceeding is brought by or on behalf of the Town of Westfield.
B.
Subject to the conditions set out in this chapter, the
employee shall be entitled to be represented by the Attorney for the town;
provided, however, that the employee shall be entitled to representation by
private counsel in any civil judicial proceeding whenever the Attorney for
the town determines, based upon his investigation and review of the facts
and circumstances of the case, that representation by the Attorney for the
town would be inappropriate, or whenever a court of competent jurisdiction,
upon appropriate motion or by a special proceeding, determines that a conflict
of interest exists and that the employee is entitled to be represented by
private counsel. The Attorney for the town 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. If it has been
determined that an employee or group of employees is entitled to representation
by private counsel under the provisions of this section, the Attorney for
the town shall so certify to the Town Board, and thereupon, reasonable attorney
fees and litigation expenses shall be paid by the town to such private counsel
from time to time during the pendency of the civil action or proceeding upon
certification by the Attorney for the town that the employee is entitled to
representation under the terms and conditions of this chapter and also upon
certification by the head of the department, board, commission, division,
office or agency in which such employee is employed and upon the audit and
warrant of the Town Supervisor. Nothing herein contained shall prevent an
employee from employing his or her own counsel at the expense of employee.
C.
Where the employee delivers process and a request for a defense to the Attorney for the town as required by § 14-5 of this chapter, the Attorney for the town shall take the necessary steps, including the retention of private counsel where required under the terms and conditions of this chapter, 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.
A.
The town shall indemnify and save harmless its employees
to the extent herein set out, 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 not paid by the town's insurance carrier, provided that the
act or omission from which such judgment or settlement arose occurred while
the employee was acting in good faith and within the scope of his public employment
or duties, except that the duty to indemnify and save harmless prescribed
by this section shall not arise where the injury or damage resulted from intentional
wrongdoing, malice or reckless conduct 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 Attorney for the town. The Attorney for
the town shall review such proposed settlement as to form and amount, and
shall render a report as to whether in his professional opinion 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 an employee with respect
to a settlement that has not been first reviewed by the Attorney for the town
and the Supervisor and approved by the Town Board.
C.
Upon entry of 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 warrant
shall then be issued by the Supervisor.
The duty to defend or indemnify and save harmless provided by this chapter
shall be conditioned upon:
A.
Delivery to the Attorney for the town or his assistant,
at his office, by the employee, of a written request to provide for his or
her defense, together with the original or a complete copy of any and all
summons, complaint, process, notice, demand or pleading, within 10 business
days after he or she is served with such document.[1]
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 resulting therefrom.
C.
Compliance with all other provisions of this chapter
and cooperation with and obedience to the requests of the town insurance carrier(s).
A.
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.
B.
Any conditions imposed or legal representation offered
by an insurer of the Town of Westfield providing insurance which may respond
to the action or proceeding brought against the employee shall supersede any
right, procedure or privilege conferred by this chapter.
C.
This chapter does not extend to sums assessed in punitive
or exemplary damages, fines or penalties or recoveries pursuant to § 51
of the General Municipal Law.
D.
The rights and obligations afforded employees by this
chapter are limited to those specifically set out herein.
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 available to or conferred upon the
town or any unit, entity, officer or employee of the town, or any right to
defense and/or indemnification 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 not be construed to impair, alter,
limit or modify the rights and obligations of any insurer under any policy
of insurance.
