[HISTORY: Adopted by the Town Board of the Town of Verona 3-5-1990 by L.L. No. 2-1990 (Ch. 8 of the 1998 Code). Amendments noted where applicable.]
The purpose of this chapter is to provide legal and financial protection for those individuals serving the Town of Verona from losses which may be brought against them in their individual capacity for actions taken while in the 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, the following terms shall have the meanings indicated:
- Any person holding a position by election, appointment or employment in the service of the Town of Verona, whether or not compensated, or a volunteer expressly authorized to participate in a municipally-sponsored volunteer program, but shall not include an independent contractor. The term "employee" shall include a former employee, his estate or judicially appointed personal representative.
Upon compliance by the employee with the provisions of § 17-5 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 acting within the scope of his public employment or duties, or which is brought to enforce a provision of § 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 of Verona.
Subject to the conditions set forth in Subsection A of this section, the employee shall be entitled to be represented by the Town Attorney or other attorney designated by the Town Board; provided, however, that the employee shall be entitled to representation by private counsel of his choice in any civil judicial proceeding whenever the Town Attorney determines, based upon his investigation and review of the facts and circumstances of the case, that representation by the Town Attorney or any other attorney designated by the Town Board 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 of his choice. 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 employee or group of employees is entitled to representation by private counsel under the provisions of this section, the Town Attorney shall certify to the Town Board. 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 proceedings.
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 § 17-5 of this chapter, the attorney shall take the necessary steps including the retention of private counsel 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 pertaining to the obligation to provide for a defense.
The Town of Verona 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 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 the Town Board.
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.
Nothing in this section shall authorize the Town of Verona 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 of Verona 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.
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 Supervisor, and if not inconsistent with the provisions of this section, the amount of such judgment or settlement shall be paid by the Town of Verona.
[Amended 5-4-1998 by L.L. No. 1-1998]
The duty to defend or indemnify and save harmless provided by this chapter shall be conditioned upon delivery to the Town Attorney, at his office, 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 of Verona 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.
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 employee to give notice to the Town of Verona under § 10 of the Court Claims Act, § 50-c of the General Municipal Law or any other provision of law.
All payments made pursuant to the terms of this chapter, whether for insurance or otherwise, shall be deemed to be for a public purpose and shall be audited and paid in the same manner as other Town charges.
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 available to or conferred upon any unit, entity, officer or employee of the Town, 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 provision of state or federal statutory or common law.
Except as otherwise provided in this chapter, benefits accorded to employees under this chapter shall be in lieu of and take the place of defense or indemnification protections accorded the same employees by another enactment; unless the Town Board shall have provided that these benefits shall supplement, and be available in addition to, defense or indemnification protection conferred by another enactment.