[HISTORY: Adopted by the Town Board of the Town of Maine 2-14-2006
by L.L. No. 1-2006. Amendments noted where applicable.]
GENERAL REFERENCES
Officers and employees — See Ch. 102.
As used in this chapter, unless the context otherwise requires:
Any Town of Maine officer, Town of Maine employee, member of the
Town Board of the Town of Maine, member of the Town of Maine Planning Board,
member of the Town of Maine Zoning Board of Appeals, member of any other Town
of Maine board or commission, Town of Maine volunteer expressly authorized
by the Town of Maine to participate in a publicly sponsored volunteer program,
or any other person holding a Town of Maine position by election, appointment
or employment in the service of the Town of Maine, whether or not compensated,
but shall not include an independent contractor. The term "employee" shall
include a former employee of the Town of Maine, his estate or judicially appointed
personal representative.
The Town of Maine.
The Town Attorney of the Town of Maine and shall include the Deputy
Town Attorney of the Town of Maine.
The Town Board of the Town of Maine.
The Supervisor of the Town of Maine.
A.
Defense of employee
(1)
Upon compliance by the employee with the provisions of § 32-3 of this chapter, the Town shall provide for the defense of the employee:
(a)
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/her public employment or duties
including, without limitation, any civil action or proceeding arising out
of any alleged act or omission in which it is alleged that the employee has
violated the civil rights of the claimant, petitioner or plaintiff under Sections
1981 and 1983 of the U.S. Civil Rights Act (42 U.S.C. §§ 1981
and 1983);
(b)
In any criminal proceeding in a state or federal court
arising out of any act which occurred while the employee was acting within
the scope of his pubic employment or duties, upon his acquittal or the dismissal
of criminal charges against him; or
(c)
In connection with an appearance before a grand jury
which returns no indictment against the employee, where the appearance resulted
from actions occurring while the employee was acting within the scope of his
public employment.
(2)
Such defense shall not be provided where such action
or proceeding is brought by or on behalf of the Town.
B.
Subject to the conditions set forth in this chapter,
the employee shall be represented by the Town Attorney or by 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 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 to the Town Supervisor as required by § 32-3 of this chapter, the Town Attorney or the Town 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 chapter,
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, 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, attorney's 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.
A.
The duties to defend provided in this chapter 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 the employee 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 chapter, unless the employee shall state in writing that
a defense is not requested.
B.
The duty to indemnify and save harmless prescribed by
this chapter shall be conditioned upon 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.
C.
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 Town Supervisor, 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 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 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.
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 any
unit, board, commission, 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.