[Adopted 7-11-1988 by L.L. No. 4-1988]
The purpose of this article is to provide legal and financial
protection for those individuals serving the County of Dutchess 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 article, the County Legislature
of Dutchess County 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 article, the County Legislature
of Dutchess County does not intend to limit or otherwise abrogate
any existing right or responsibility of the County of Dutchess or
its employees with regard to indemnification or legal defense. It
is solely the intent of this article 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.
[Amended 5-13-1991 by L.L. No. 6-1991]
As used in this article, the following terms shall have the
meanings indicated:
Any person holding a position by election, appointment or
employment in the service of the County of Dutchess, whether or not
compensated, or a volunteer expressly authorized to participate in
a County-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 and shall also
include an officer, director or employee of the Dutchess County Industrial
Development Agency and a member of any board or agency appointed by
the County Executive and/or the Dutchess County Legislature.
A.
Upon compliance by the employee with the provisions of § 75-25 of this article, the County of Dutchess, through the office of the County Attorney or by means of any applicable insurance program maintained by the County, 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 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 County of Dutchess.
B.
Subject to the conditions set forth in Subsection A of this section, the employee shall be entitled to be represented by the County Attorney; provided, however, that the employee shall be entitled to representation by private counsel of his/her choice in any civil judicial proceeding whenever the County Attorney determines, based upon his/her investigation and review of the facts and circumstances of the case, that representation by the County 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/her choice. The County Attorney shall notify the employee in writing of such determination that the employee is entitled to be represented by private counsel of his/her choice. The County 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 County Attorney shall so certify to the County Legislature. Reasonable attorney's fees and litigation expenses shall be paid by the County to such private counsel from time to time during the pendency of the civil action or proceeding, subject to certification by the County Attorney as provided herein. Any dispute with respect to representation of multiple employees by a single counsel or the amount of litigation expenses or the reasonableness of attorney's fees shall be resolved by the court upon motion or by way of a special proceeding.
C.
Where the employee delivers process and a request for a defense to the County Attorney as required by § 75-25 of this article, the County Attorney shall take the necessary steps, including the retention of private counsel where necessary as provided in Subsection B herein, 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 County of Dutchess 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/her
public employment or duties. 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 and shall not be applicable to an award for punitive
damages.
B.
The determination of an issue of whether or not an employee was acting
within the scope of his/her public employment or duties at the time
of the occurrence, act or omission giving rise to a claim shall be
made in the first instance, with regard to employees within the Executive
Branch, by the County Executive, on advice from the County Attorney,
and, with regard to employees within the Legislative Branch, by the
Chair of the Legislature, subject to the entire Legislature, also
upon advice from the County Attorney. Any such determination shall
be subject to review by a court of competent jurisdiction in the manner
prescribed by law.
C.
An employee represented by private counsel shall cause to be submitted
to the County Legislature, any proposed settlement which may be subject
to indemnification by the County of Dutchess. The County Attorney
shall review such proposed settlement as to form and amount and submit
a favorable recommendation if, in his/her judgment, the settlement
is in the best interest of the County. Nothing in this subsection
shall be construed to authorize the County to indemnify or hold harmless
an employee with respect to any settlement not so reviewed and approved
by the County Attorney.
D.
Upon entry of a final judgment against the employee, or upon the settlement of the claim after approval by the Legislature as provided in Subsection C hereof, the employee shall cause to be served on the County Attorney, personally or by certified or registered mail, a copy of such judgment or settlement within 30 days of the date of entry or settlement. If not inconsistent with the provisions of this section, such judgment or settlement shall be certified for payment by the County Attorney.
The duty to defend or indemnify and save harmless provided by
this article shall be conditioned upon the following:
A.
Delivery by the employee to the County Attorney, or his/her assistant,
at his/her office, of the original or a copy of any summons, complaint,
process, notice, demand or pleading within 10 days after service on
the employee. Such delivery shall be deemed a request by the employee
that the County Attorney provide for his defense pursuant to this
article.[1]
B.
The full cooperation of the employee in the defense of such action
or proceeding and in the defense of any action or proceeding brought
against the County based on the same act or omission, and in the prosecution
of any appeal.
The benefits of this article 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 article be construed
to affect, alter or repeal any provision of the Workers' Compensation
Law.
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.
The provisions of this article shall apply to all actions and
proceedings pending upon the effective date hereof or thereafter instituted.
Except 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
County of Dutchess, 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.
