[HISTORY: Adopted by the Town Board of the Town of Lyons.
Amendments noted where applicable.]
This chapter shall be entitled "A Local Law to Provide for the
Defense and Indemnification of Officers and Employees of the Town
of Lyons, Wayne County, New York."
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.
The Town of Lyons, County of Wayne, State of New York.
A.
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 Section 1981 or 1983 or Title
42 of the United States Code. Such defense shall not be provided where
such civil action is brought by or on behalf or the Town pursuant
to authorization of the Town Board.
B.
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: 1) the Town does not have a Town Attorney; 2) 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 3) 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 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.
C.
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 § 19-4 of this chapter, the Town Attorney or Town 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.
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;
and
B.
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.
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.
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.
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.
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 Workers' 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.
If any provision of this chapter or application thereof to any
person or circumstance is held unconstitutional or invalid, in whole
or in part, by any court of competent jurisdiction, such holding of
unconstitutionality or invalidity shall in no way affect or impair
any other provision of this chapter or the application of any such
provision to any other person or circumstance.