[HISTORY: Adopted by the Town Board of the Town of Marcellus 7-13-2015 by L.L. No. 3-2015. Amendments noted where applicable.]
This chapter is enacted pursuant to the New York State Constitution, New York Municipal Home Rule Law § 10 and Public Officers Law § 18.
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 Marcellus, whether or not compensated, but shall not include an independent contractor. The term "employee" shall include a former employee, his estate or judicially appointed personal representative.
- The Supervisor of the Town of Marcellus.
- The Town of Marcellus, New York.
- TOWN ATTORNEY
- The duly appointed attorney of the Town of Marcellus.
- TOWN BOARD
- The Town Board of the Town of Marcellus.
Upon compliance by the employee with the provisions of § 28-5 of this chapter, the Town shall provide for the defense of the employee:
In any civil action or proceedings 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; or
In any criminal proceeding in a state or federal court arising out of any act which occurred while the employee was acting within the scope of his or her public employment or duties, provided the employee is acquitted or the criminal charges against the employee are dismissed.
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 employ or 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 attorneys' 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 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.
Where the employee delivers process and a request for a defense to the Town Attorney or the Supervisor as required by § 28-5 of this chapter, the Town Attorney or the Town Board, as the case may be, shall take the necessary steps including the retention of an attorney under the terms and conditions provide 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.
Subject to the conditions set forth in this chapter, the Town shall indemnify and hold harmless its employee in the amount of any judgment obtained against such employee 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 the Town Board.
The duty to indemnify and save harmless prescribed by this section shall not arise where the injury or damages result from intentional wrongdoing or recklessness on the part of the employee.
Nothing in this section 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 reasons 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 New York State or of the United States.
The limit of indemnification under this chapter shall be the limit of liability in the pertinent and applicable public officials' and/or employees' liability insurance policy maintained by the Town, and all employees shall fully cooperate with said insurer, and failure to so cooperate shall be a waiver of any rights of the employee under this chapter.
The duty to defend provided in this chapter shall be contingent upon: (1) delivery to the Town Attorney or, if none, to the Supervisor of the original or a copy of any summons, complaint, process, notice, demand or pleading within 10 days after he/she is served with such document; and (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. Such delivery shall be deemed a request that the Town provide for the employee's 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)]
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 Supervisor; and if not inconsistent with the provisions of this chapter, the amount of such judgment or settlement shall be paid by the Town.
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 provisions of this chapter be construed to affect, alter or repeal any provisions of the Workers' Compensation Law.
The provisions of this chapter shall not be construed to 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, limit, modify, abrogate or restrict any immunity to liability available to or conferred upon any unit, entity, officer or employee of any public entity by, in accordance with or by reason of any other provision of state or federal statutory or common law.
This article 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.
If any clause, sentence, paragraph, subdivision or part of this chapter or the application thereof to any person, firm or corporation, or circumstance, shall be adjudged by any court of competent jurisdiction to be invalid or unconstitutional, such order or judgment shall not affect, impair or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, subdivision or part of this chapter or in its application to the person, individual, firm or corporation or circumstance, directly involved in the controversy in which such judgment or order shall be rendered.