[Adopted 5-4-1981 by L.L. No. 4-1981]
As used in this article, unless the context otherwise requires,
the following terms shall have the meaning indicated:
Any person holding a position by election, appointment or
employment in the service of the Town, but shall not include a volunteer,
any person not compensated for his services or an independent contractor.
The term "employee" shall include a former employee, his estate or
judicially appointed personal representative.
The Town of Royalton.
A.
Upon compliance by the employee with the provisions of § 107-3 of this article, 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.
B.
Representation. Subject to the conditions set forth in this article,
the employee shall be represented by the Town Attorney or an attorney
employed or retained by the Town for the defense of the employee.
(1)
The
Town Board shall employ or retain an attorney for the defense of the
employee whenever:
(a)
The Town does not have a Town Attorney;
(b)
The Town Board determines based on its investigation and review of
the facts and circumstances of the case that representation by the
Town Attorney would be inappropriate; or
(c)
A court of competent jurisdiction determines that a conflict of interest
exists and that the employee cannot be represented by the Town Attorney.
(2)
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 article. Payment of such fees
and expenses shall be made in the same manner as payment of other
claims and expenses of the Town.
(3)
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.
Where the employee delivers process and a request for a defense to the Town Attorney or the Town Supervisor as required by § 107-3 of this article, 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 Subsection B of this section 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.
The duties
to defend provided in this article shall be contingent upon:
(1)
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 10 days after he is served with such document;
and[1]
(2)
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.
B.
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.
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 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 Town Board of the Town.
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 a 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 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 chief administrative officer
of the Town; and if not inconsistent with the provisions of this section,
the amount of such judgment or settlement shall be paid by the Town.
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 Workmens' Compensation
Law.
The benefits of this article 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 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, in
accordance with, or by reason, 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 bought on or after the effective date of this article.
