[HISTORY: Adopted by the Town Board of the Town of Lowville 12-16-1993 by L.L. No.
4-1993 (Ch. 18 of the 1994 Code). Amendments noted
where applicable.]
This chapter shall be entitled "Defense and Indemnification
of Public Officers."
The purpose of this chapter is to protect the officers and employees
of the Town of Lowville pursuant to the provisions of § 18
of the Public Officers Law of the State of New York.
As used in this chapter, the following terms shall have the
meanings indicated:
Any employee of the Town, any volunteer expressly authorized
to participate in a volunteer program sponsored by the Town, any other
person holding a position in the Town by reason of election or appointment,
whether or not compensated, but shall not include any independent
contractor. The term "employee" shall also include a former employee
and the estate or judicially appointed personal representative of
the former employee.
The Town of Lowville, Lewis County, New York.
A.
Upon compliance by the employee with the provisions of § 18-6 of this chapter, the Town shall provide for the defense of the employee in any civil action or proceeding, state or federal, arising out of any alleged act or omission which occurred or allegedly occurred while the employee was acting within the scope of his or her public employment or duties. This duty to provide for a defense shall not arise where such civil action or proceeding is brought by or at the behest of the Town.
B.
Subject to the conditions set forth in Subsection A of this section, the employee shall be entitled to be represented by private counsel of his or her choice in any civil action or proceeding whenever the chief legal officer of the Town or other counsel designated by the Town determines that a conflict of interest exists, or whenever a court, upon appropriate motion or otherwise by a special proceeding, determines that a conflict of interest exists and that the employee is entitled to be represented by counsel of his or her choice; provided, however, that the chief legal officer or other counsel designated by the Town may require, as a condition to payment of the fees and expenses of such representation, that appropriate groups of such employees be represented by the same counsel. Reasonable attorneys' fees and litigation expenses shall be paid by the Town to such private counsel from time to time during the pendency of the civil action or proceeding with the approval of the governing body of the Town.
C.
Any dispute with respect to representation of multiple employees
by a single counsel or the amount of litigation expenses or the reasonableness
of attorneys' fees shall be resolved by the court upon motion
or by way of a special proceeding.
D.
Where the employee delivers process and a written request for a defense to the Town under § 18-6 of this chapter, the Town shall take the necessary steps on behalf of the employee to avoid entry of a default judgment pending resolution of any question pertaining to the obligation to provide for a defense.
A.
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 or her 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.
B.
Except as otherwise provided by law, the duty to indemnify and save
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
save 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 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 or her 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 Supervisor of
the Town and the Town Clerk; and if not inconsistent with the provisions
of this section, the amount of such judgment or settlement shall be
paid by the Town.
The duty to defend or indemnify and save harmless prescribed
by this chapter shall be conditioned upon:
A.
Delivery by the employee of the chief legal officer of the Town or
to the Supervisor of the Town of a written request to provide for
his or her defense, together with the original or a copy of any summons,
complaint, process, notice, demand or pleading, within 10 days after
he or she is served with such document; and
B.
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.
The benefits of this chapter shall 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 section be construed to
affect, alter or repeal any provision of the Workers' Compensation
Law. The provisions of this chapter shall not be construed in any
way to impair, alter, limit, modify, abrogate or restrict any immunity
to liability available to or conferred upon any employee of the Town
by, and in accordance with, or by reason of, any other provision of
state or federal statutory or common law.
This chapter shall not in any way 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 law.
The Town is hereby authorized and empowered to purchase insurance
from any insurance company created by or under the laws of this state,
or authorized by law to transact business in this state, against any
liability imposed by the provisions of this section, or to act as
a self-insurer with respect thereto. 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.
All payments made under the terms of this chapter, whether for
insurance or otherwise, shall be deemed for a public purpose and shall
be audited and paid in the same manner as other public charges.
