[Adopted 7-7-1980 by L.L. No. 1-1980 (Ch.
26A, Art. I, of the 1963 Code)]
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 Grand Island.
A.
Upon compliance by the employee with the provisions of § 70-3 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 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 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 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 § 70-3 of this article, 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.
D.
Subject to the conditions set forth in this article,
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
duties, and 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. The duty to
indemnify and save harmless prescribed by this subsection shall not
arise where the injury or damage resulted from intentional wrongdoing
or recklessness on the part of the employee; or 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.
[Added 9-20-2000 by L.L. No. 6-2000]
[Amended 9-20-2000 by L.L. No. 6-2000]
A.
The duties to defend, indemnify and save harmless
provided in this article shall be contingent upon delivery to the
attorney appointed for the Town or, if none, to the 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 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, unless
the employee shall state in writing that a defense is not requested.
B.
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
of the Town; and if not inconsistent with the provisions of this section,
the amount of such judgment or settlement shall be paid by the Town.
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 government 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.
