[HISTORY: Adopted by the Town Board of the Town of Mount
Morris 7-18-1980 by L.L. No. 2-1980. Amendments noted where applicable.]
This chapter shall be entitled a "Local Law Providing for the
Defense and Indemnification of Officers and Employees of the Mount
Morris Town Board."
As used in this chapter, unless the context requires otherwise,
the following terms shall have the meanings indicated:
Any commissioner, member of a public board or commission,
trustee, director, officer, employee, volunteer expressly authorized
to participate in a publicly sponsored volunteer program, or any other
person holding a position by election, appointment or employment in
the service of a public entity, whether or not compensated, but shall
not include the sheriff of any county or an independent contractor.
The term "employee" shall include a former employee, his estate or
judicially appointed personal representative.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
The Mount Morris Town Board.
A.Â
Upon
compliance by the employee with the provisions 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 or in good faith purporting
to act 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 U.S. Code. Such defense shall not be provided where such
civil action is brought by or on behalf of the Town pursuant to authorization
of the Town Board.
B.Â
Subject
to the conditions set forth in this chapter, the employee shall be
represented by the Town Attorney or an attorney employed or retained
by the Town for the defense of the employee. The Town Board shall
retain an attorney for the defense of the employee whenever the Town
does not have a Town Attorney, the Town Board determines, based upon
its investigation and review of the facts and circumstances of the
case, that representation by the Town Attorney would be inappropriate
or a court of competent jurisdiction determines that a conflict of
interest exists and that the employee cannot be represented by the
Town Attorney. Reasonable attorney's fees and litigation expenses
shall be paid by the Town to such attorney employed or retained, from
time to time, during 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 chapter.
Payment of such fees and expenses shall be made in the same manner
as payment of other claims and expenses of the Town. 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.Â
Where the employee delivers process and a request for a defense to the Town Attorney or, if none, to the Town Supervisor as required by this section of this chapter, 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.
The duties to defend and indemnify and save harmless provided
in this chapter shall be contingent upon:
A.Â
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 the employee is served with such document. Such
delivery shall be deemed a request by the employee that the Town provide
for his defense pursuant to this chapter, unless the employee shall
state, in writing, that a defense is not requested.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
B.Â
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.
A.Â
The
Town shall indemnify and save harmless any employee whose defense
was provided pursuant to this chapter in the amount of any judgment
obtained against such employee or in the amount of any settlement
or compromise approved by the Town Board. The Town shall not indemnify
and save harmless the employee:
B.Â
The
claim or compromise settlement which may be subject to indemnification
by the Town shall not be paid unless it is presented to and approved
by the Town Board.
C.Â
Upon
entry of final judgment against the employee or upon settlement or
compromise of a claim as approved by the Town Board, the employee
shall cause to be served upon the Town Supervisor a copy of such judgment
or settlement, personally or by certified or registered mail, within
30 days of the date of entry or settlement. Such judgment or settlement
shall be processed and paid in the same manner as other judgments
or settlements of claims are paid by the Town.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
The benefits of this chapter 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 chapter be construed
to affect, alter or repeal any provisions of the Workmen's Compensation
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.
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 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.
The provisions of this chapter shall apply to all actions and
proceedings specified herein which have been commenced, instituted
or brought on or after the effective date of this chapter.