[HISTORY: Adopted by the Town Board of the Town of Oyster
Bay 6-24-1980 by L.L. No. 5-1980. Section 22-8 amended at time of
adoption of Code; see Ch. 1, General Provisions, Art. I. Other amendments
noted where applicable.]
GENERAL REFERENCES
Administration of government — See Ch. 4.
Civil service — See Ch. 16.
Code of Ethics — See Ch. 30.
Personnel policies — See Ch. 59.
[1]
Editor's Note: For state provisions regarding defense
and indemnification, see § 18 of the Public Officers Law.
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, whether or not compensated,
or a volunteer expressly authorized to participate in a town-sponsored
volunteer program, but shall not include an independent contractor.
The term "employee" shall include members of all boards and commissions
of the town. The term "employee" shall also include a former employee,
his estate or judicially appointed personal representative.
Upon compliance by the employee with the provisions of § 22-4 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 exercising or performing, or, in good faith, purporting to exercise or perform his powers and duties within the scope of his public employment, including but not limited to any action which is brought to enforce a provision of Section 1981 or 1983 of Title 42 of the United States Code. This duty to provide for a defense shall not arise where such civil action or proceeding is brought by or on behalf of the town.
Subject to the conditions set forth in § 22-2 of this chapter, the employee shall be entitled to be represented by the Town Attorney; provided, however, that the employee shall be entitled to representation by private counsel of his choice in any civil judicial proceeding whenever the Town Board determines, based upon the recommendation of the Town Attorney pursuant to his investigation and review of the facts and circumstances of the case that representation by the Town Attorney would be inappropriate, or whenever a court of competent jurisdiction, upon appropriate motion or by a special proceeding, determines that a conflict of interest exists and that the employee is entitled to be represented by private counsel of his choice. The Town Attorney shall notify the employee, in writing, of such determination that the employee is entitled to be represented by private counsel. The Town Board, upon recommendation of the Town Attorney, 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. If the Town Board determines that the employee or group of employees is entitled to representation by private counsel under the provisions of this chapter, the Town Clerk shall so certify to the Comptroller. 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, subject to certification that the employee is entitled to representation under the terms and conditions of this chapter by the head of the department, commission, division, office or agency in which such employee is employed, upon approval of the Town Attorney and upon audit of the Comptroller. 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.
Where the employee delivers process and a request for a defense to the Town Attorney, as required by § 22-8 of this chapter, the Town Attorney shall take the necessary steps, including, if appropriate, the temporary retention of private counsel on behalf of the employee, to avoid entry of a default judgment pending resolution by the Town Board of any question pertaining to the obligation of the town to provide for a defense of the employee. The Town Attorney shall then undertake an inquiry and review of the facts and circumstances of the case and forward his findings and recommendations to the Town Board. The Town Attorney shall forward therewith estimates as to what the costs would be if defense of the case were undertaken by the retention of private counsel. The Town Board shall then determine whether the employee is entitled to a defense by the town pursuant to § 22-2 of this chapter. If the Town Board determines that the employee is so entitled to a defense, then the Town Board shall make a determination regarding any questions as to the retention of private counsel pursuant to § 22-3 of this chapter. If the Town Board determines that defense of the case by retention of private counsel is appropriate, then said determination shall include, but not be limited to, an estimate of the costs of such retention and defense. The Town Board may, from time to time, upon recommendation of the Town Attorney, review and reassess determinations made under this section based on additional evidence or later developments in the case.
The town shall indemnify and save harmless its employees in
the amount of any judgment obtained against such employees in any
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 settlement
arose, occurred while the employee was exercising or performing, or,
in good faith purporting to exercise or perform his powers and duties
within the scope of his public employment; the duty to indemnify and
save harmless prescribed by this section shall not arise where the
injury or damage resulted from ultra vires acts or recklessness on
the part of the employee.
An employee represented by private counsel shall cause to be
submitted to the head of the department, commission, division, office
or agency in which he is employed, any proposed settlement which may
be subject to indemnification by the town and, if not inconsistent
with the provisions of this chapter, such head of the department,
commission, division, office or agency in which he is employed shall
certify such proposed settlement and submit such proposed settlement
and certification to the Town Attorney. The Town Attorney shall review
such proposed settlement as to form and amount, and shall give his
recommendation of approval to the Town Board if, in his judgment,
the settlement is in the best interest of the town. The Town Board
shall review such proposed settlement, together with the certification
aforesaid and the recommendation of the Town Attorney and shall approve
such proposed settlement if it determines it to be in the best interest
of the town. Nothing in this section shall be construed to authorize
the town to indemnify or save harmless any employee with respect to
a settlement not so reviewed and approved by the Town Attorney and
approved by the Town Board.
Upon entry of a final judgment against the employee or upon
the settlement of the claim, the employee shall cause to be served
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 head of the department, commission, division, office or agency
in which he is employed; and if not inconsistent with the provisions
of this chapter, such judgment or settlement shall be certified for
payment by such head of the department commission, division, office
or agency. If the Town Attorney concurs in such certification, the
judgment or settlement shall be paid upon the audit by the Comptroller.
The duty to defend or indemnify and save harmless prescribed
by this chapter shall be conditioned upon delivery to the Town Attorney
by the employee of the original or a copy of any summons, complaint,
process, notice, demand or pleading within 10 days after he is served
with such document, and 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. Such delivery shall be deemed
a request by the employee that the town provide for his defense pursuant
to this chapter.
A.
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 chapter be construed to affect, alter
or repeal any provision of the Workers' Compensation Law.
B.
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.
C.
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.
D.
The provisions of this chapter shall apply to all actions and proceedings
pending upon the effective date thereof or thereafter instituted.
E.
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, entity, officer or employee of the town or any other
level of government or any right to defense and/or indemnification
provided for any governmental officer or employee, by, in accordance
with, or by reason of, any other provisions of town, state, county
or federal statutory or common law.
If any provisions of this chapter or the application thereof
to any person or circumstance be held unconstitutional or invalid,
in whole or in part, of any court of competent jurisdiction, such
holding of unconstitutionality or invalidity shall in no way affect
or impair any other provision of this chapter or the application of
any such provision to any other person or circumstance.
