[HISTORY: Adopted by the Town Board of the
Town of Colonie 10-9-1980 by L.L. No. 12-1980. Amendments noted
where applicable.]
The purpose of this chapter is to provide legal
and financial protection for those individuals serving the Town of
Colonie from losses which may result from legal actions 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 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 such security
is also required for local personnel. By enactment of this chapter,
the Town Board does not intend to limit or otherwise abrogate any
existing right or responsibility of the Town of Colonie or its employees
with regard to indemnification or legal defense. It is solely the
intent of this chapter 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.
[Amended 1-26-1995 by L.L. No. 3-1995]
As used herein, the following words shall have
the meanings below set forth:
Any person holding a position by election, appointment or
employment in the service of the Town, but shall not include an independent
contractor. The term "employee" shall include a former employee, his
estate or judicially appointed personal representative.
The Town of Colonie.
A.Â
Upon compliance by the employee with the provisions of § 14-8 of this chapter, 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. The Town shall indemnify and save harmless its employees in the amount of any judgment obtained against such employee, 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 or, in good faith, purporting to act within the scope of his public employment or 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.
[Amended 1-26-1994 by L.L. No. 3-1995]
(1)Â
The Town shall make a determination of whether the
employee was acting or, in good faith, purporting to act within the
scope of his employment or duties, as soon as practicable after presentation
of suit. Such determination shall be made after a full investigation
into the allegations of the complaint by the Town Attorney's office,
with the assistance of such other individuals as may be reasonably
necessary. If the Town determines that the employee was not acting
within the scope of his employment or duties, the Town shall bear
no legal expense on behalf of such employee, nor shall it indemnify
the employee for any judgment obtained against him; further, if, after
an initial determination that the employee was acting within the scope
of his employment, the Town determines that the employee has mislead
the Town or has otherwise acted in bad faith during the pendency of
the action or proceeding and the Town determines that the employee
was not, in fact, acting or purporting to act within the scope of
his employment or duties, the Town shall bear no legal expense on
behalf of such employee, nor shall it indemnify the employee for any
judgment obtained against him.
(2)Â
In accordance with the provisions of § 50-j, Subdivision 6, of the General Municipal Law, the Town shall provide for the defense of any civil action or proceeding brought against a duly appointed police officer of the Town and shall indemnify and save harmless such police officer from any judgment of a court of competent jurisdiction whenever such action, proceeding or judgment is for punitive or exemplary damages arising out of a negligent act or other tort of such police officer committed while in the proper discharge of his duties and within the scope of his employment. The determination of whether any such police officer properly discharged his duties within the scope of his employment shall be made in accordance with the provisions of Subsection A(1) of this section.
B.Â
Subject to the conditions set forth in this chapter,
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 or
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.Â
Where the employee delivers process and a request for a defense to the Town Attorney or the Town Supervisor as required by § 14-8 of 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 § 14-3B of this chapter, 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 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 benefits of this chapter shall be extended
to an employee of a negotiating unit for which an agreement has been
negotiated pursuant to Civil Service Law Article 14 only if such agreement
expressly so provides.
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.
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, 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.
Restrictions shall be as follows:
A.Â
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.
[Amended 1-26-1995 by L.L. No. 3-1995]
B.Â
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.
[Amended 1-26-1995 by L.L. No. 3-1995]
The provisions of this chapter shall apply to
all actions and proceedings specified herein which are pending on
the effective date of this chapter or are commenced, instituted or
brought on or after the effective date of this chapter.
