[HISTORY: Adopted by the Town Board of the Town of Kingsbury 6-9-1997 by L.L. No. 3-1997 (Ch. 10 of the 1983 Code). Amendments noted where applicable.]
Editor's Note: This local law supersedes former Ch. 10, Indemnification of Employees, adopted 1-25-1982.
The purpose of this chapter is to provide legal and financial protection for those individuals serving the Town of Kingsbury from losses which may be brought against them in their individual capacity for actions taken while in 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 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.
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, including members of appointed boards or commissions, whether or not compensated, including but not limited to the Recreation Commission, the Town Historian and volunteers expressly authorized to participate in a publicly sponsored volunteer program, but not including independent contractors. The term "employee" shall include a former employee, his estate or judicially appointed personal representative. The Town may, by contract, include an independent contractor as an employee under this chapter of the Town Code.
- MEMBERS OF APPOINTED BOARDS
- Includes the current and former members of the Zoning Board of Appeals, Planning Board, the Assessment Board of Review, the Board of Ethics and any other board or commission to be created by the Town of Kingsbury 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 lawsuit, claim or proceeding.
- The Town of Kingsbury, Washington County, New York.
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 Title 42 of the United States Code.
Such defense shall not be provided where the employee has not complied with the provisions of § 16-5 below or where employee is sued by the Town while he or she is still in office.
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 or activities related to the employee's performance in his or her employment.
The Town, however, shall reimburse the employee for all legal expenses, including attorneys' fees, if a court from which an appeal cannot be or is not taken finds for the employee.
Subject to the conditions set forth in this chapter, the employee shall be represented by an attorney employed or retained by the Town for the defense of the employee. Reasonable attorneys' 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. Such payment is subject to certification by the Town Board that the employees are 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 or by an attorney employed or retained for such purposes or with respect to the amount of the fees or expenses shall be resolved through arbitration pursuant to the rules of the American Arbitration Association.
Where the employee delivers process and a request for a defense to the Town Supervisor as required by § 16-5 of this chapter, the Town Board shall take the necessary steps, including the retention of an attorney on behalf of the employee to avoid entry of a default judgment, pending resolution of any question relating to the obligation to the Town to provide a defense.
Awards not covered by insurance; deductibles.
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 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.
If, for any reason, 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, and such action is not covered by a policy of insurance, the Town will pay the compensatory damage award or settlement.
The Town shall provide the indemnification, provided that the act or omission from which such judgment or claim arose occurred while the employee was acting within the scope of his or her public employment or duties, as alleged in the complaint or as determined by the court; provided, further, that in the case of a settlement, the duty to indemnify and hold harmless shall be conditioned on the approval of the amount of the settlement by the Town Board.
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.
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 or her public employment or duties, has, without willfulness or intent on his or her part, violated a prior order, judgment, consent, decree or stipulation of settlement entered in any court of this state or of the United States.
Upon entry of a final judgment against the employee or upon 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 a supervisor. If such final judgment or settlement is not inconsistent with the provisions of this section, the amount of such judgment or settlement shall be paid by the Town.
The duties to defend and indemnify provided in this chapter shall be contingent upon:
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 chapter, unless the employee shall state, in writing, that a defense is not requested.
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 chapter will inure 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 appeal 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 the 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.
Unless 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 or in accordance with 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, filed or brought on or after the effective date of this chapter.