[Adopted 8-31-2004 by L.L. No. 1-2004]
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, including members of appointed
boards, and volunteers expressly authorized to participate in a Town
publicly sponsored volunteer program, whether or not compensated,
but shall not include an independent contractor. The term "employee"
shall include a former employee, his estate or judicially appointed
personal representative.
Includes the current and former members of the Town of Highland
Planning Board, the Town of Highland Zoning Board of Appeals, and
any other board or commission to be created by the Town whose members
are responsible for regulating activities in the Town or are responsible
for providing services.
Any person who was, is, or is threatened to be made a named
defendant in a proceeding.
The Town of Highland, Sullivan County.
A.
Upon compliance by the employee with the provisions of § 126-3 of this article, the Town shall provide for the defense of any employee who is a party to 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 or which is brought to enforce a provision of Sections 1981 and 1983 of the United States Civil Rights Act (42 U.S.C. §§ 1981 and 1983); provided, however, no such defense shall be provided where such civil action or proceeding is brought by, at the behest of, or on behalf of the Town.
B.
The Town shall not have a duty to defend the employee where the Town
is the plaintiff in the lawsuit, or the suit is a criminal action
against the employee for activities related to the employee's
performance in his or her employment. The Town, however, shall reimburse
the employee for all legal expenses, including attorney fees, if a
court from which an appeal cannot be, or is not, taken finds for the
employee.
C.
Subject to the conditions set forth in this article, the employee
shall be represented by an attorney employed or retained by the Town
for the defense of the employee. 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 Board 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 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.
D.
Where the employee delivers process and a request for a defense to the Town Supervisor as required by § 126-4, the Town Board shall take the necessary steps, including the retention of an attorney under the terms and conditions provided in Subsection A, 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.
A.
Whenever a civil action is brought against any employee of the Town
for any action or omission arising out of or in the course of the
performance of the duties of such office, position or employment,
the Town shall provide payment of that portion of any compensatory
damage award or settlement otherwise covered by a policy of insurance
which has not been paid because of a deductible provision in said
policy; 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 or duties, as alleged in the complaint or
as determined by the court; and provided, further, that in the case
of a settlement, the duty to indemnify and hold harmless shall be
conditioned upon the approval of the amount of settlement by the Town
Board.
B.
Except as otherwise provided by law, the duty to indemnify and hold
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.
C.
Nothing in this section shall authorize the Town to indemnify or
hold harmless an employee 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 hold 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.
D.
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 public entity.
E.
Employees shall not be liable for the loss of or damage to Town assets
in the possession of the employee, provided that the employee came
into possession of the asset as part of the employee's job, responsibility
or assignment; and the employee adhered to instructions or Town rules
for handling such asset or, in the absence of such instructions or
rules, the employee was not negligent in handling such asset.
The duties to defend and indemnify provided in this article
shall be contingent upon:
A.
Delivery to the Town Supervisor of the original copy of any summons,
complaint, process, notice, demand or pleading within five days after
the employee is served with such document. 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.
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.
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 provisions of this article are not in any way intended to
affect the obligation of any claimant to give notice to the Town under
§ 50(e) of the General Municipal Law, or any other provision
of the law.
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 or
in accordance with 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.
