Town of Marion, NY
Wayne County
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[HISTORY: Adopted by the Town Board of the Town of Marion 1-22-1986. Amendments noted where applicable.]
GENERAL REFERENCES
Investment policy — See Ch. 42.
Prior notification of defects — See Ch. 238, Art. I.
As used in this chapter, unless the context otherwise requires:
EMPLOYEE
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 the Chief of Police of the Town or an independent contractor. The term "employee" shall include a former employee, his estate or judicially appointed personal representative.
TOWN
The Town of Marion.
TOWN ATTORNEY
The Town Attorney of the Town of Marion.
TOWN BOARD
The Town Board of the Town of Marion.
A. 
Upon compliance by the employee with the provisions of § 24-4 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 allegedly occurred while the employee was acting within the scope of his public employment or duties. 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.
B. 
Representation by private counsel.
(1) 
Subject to the provisions set forth in Subsection A of this section, the employee shall be entitled to be represented by the Town Attorney, except that the employee shall be entitled to be represented by private counsel in any civil judicial proceeding as follows:
(a) 
Whenever the Town Attorney determines, based upon an investigation and review of the facts and circumstances of the case, that representation by the Town Attorney would be inappropriate; or
(b) 
Whenever the Town Attorney determines, based upon an investigation and review of the facts and circumstances of the case, that representation by the Town Attorney would be inadvisable due to the unavailability of resources in the Town Attorney's Office; or
(c) 
Whenever a court of competent jurisdiction, upon proper 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; and
(d) 
Where such representation by private counsel is approved by act of the Town Board.
(2) 
Where an employee is entitled to representation by private counsel pursuant to Subsection B(1)(a), (b) or (c) hereof, the Town Attorney shall notify the employee in writing of such determination and shall so certify in a communication to the Town Board. Where the Town Board approves such representation, it shall designate the private counsel to be retained. Upon approval by the Town Board, the Town Clerk shall notify the employee in writing of such determination. Reasonable attorney's 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 audit and approval by the Town Board. 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.
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 Attorney in accordance with § 24-4 of this chapter, the Town Attorney 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 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 review and approval of the form and amount of the settlement by the Town Board. Nothing in this chapter shall be construed to authorize or require the Town to indemnify and save harmless an employee with respect to a settlement not so reviewed and approved by the Town Board.
B. 
Except as otherwise provided by law, the duty to indemnify and save harmless prescribed by this chapter shall not arise where the injury or damage resulted from intentional wrongdoing or recklessness on the part of the employee.
C. 
Nothing in this chapter 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 with 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 state or federal court.
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 Attorney and, if not inconsistent with the provisions of this chapter, the amount of such judgment or settlement shall be paid by the Town upon audit and approval by the Town Board.
The duty to defend or indemnify and save harmless prescribed by this chapter shall be conditioned upon:
A. 
Delivery by the employee to the Town Attorney of a written request to provide the employee's defense together with the original or a copy of any summons, complaint, process, notice, demand or pleading within 10 days after the employee is served with such document; and[1]
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).
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.
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 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.
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 to liability available to or conferred upon any employee or any right to defense or indemnification provided for any employee by, in accordance with, or by reason of, any other provision of state or federal statutory or common law.
The provisions of this chapter shall apply to all actions and proceedings pending upon the effective date thereof or thereafter instituted.