[HISTORY: Adopted by the Town Board of the Town of Lewiston 8-14-1978 by L.L. No. 6-1978 (Ch. 14A of the 1965 Code). Amendments noted where applicable.]
This chapter shall be known as and may be cited as the "Town of Lewiston Officer and Employee Legal Expenses and Indemnification Law."
This chapter shall apply to all the territory within the confines of the Town of Lewiston, except any incorporated villages.
It can be said without question that American citizens and government are currently utilizing litigation with unprecedented frequency to resolve countless alleged wrongs and disputes of all types and natures. Such a heightened degree of litigation has proven beneficial to the future and furtherance of human and civil rights, but it is also subject to abuse in that frivolous lawsuits have also increased dramatically. One target of such lawsuits is public servants, both officers and employees of every level and area of government. New York State law does afford some protection to some officials and employees, but leaves virtually defenseless the majority of officers and employees of local government. Thus, a local public servant who is the subject of a lawsuit has no choice but to stand alone in his own defense, incurring at times immense legal expenses and suffering the possibility of an overwhelming adverse judgment.
It is the intent of this chapter to provide relief from legal expenses incurred while defending actions which challenge the reasonable use of discretion by a public servant and/or which allege negligence, illegality or unethicality in the performance of municipal duties, through the payment of legal defense funds to officers and employees of the Town of Lewiston. It is also the intent of this chapter to provide indemnification of Town public servants in the event that an adverse judgment in such actions is entered against them.
As used in this chapter, the following terms shall have the meanings indicated:
- A person hired by the Town of Lewiston on a full-time, permanent basis who receives wages or salary directly from the Town of Lewiston, who in his municipal job or position owes no allegiance to any other person or entity but the Town of Lewiston and who is not an officer of the Town of Lewiston.
- The act of making compensation for an incurred loss.
- Costs and expenses of a successful plaintiff, if awarded, and all damages awarded to a plaintiff in a successful action.
- LEGAL EXPENSES
- Includes reasonable attorneys' fees and all costs and disbursements necessary to the subject action, but does not include any costs or expenses of the plaintiff, or damages awarded to the plaintiff, should said plaintiff be successful in his action.
- MUNICIPAL DUTIES
- Those responsibilities, both explicit and implicit, which may reasonably be determined to be a part of the position for which the subject person was hired or elected.
- The incumbents of the offices of Supervisor, Councilman, Town Clerk, Town Justice, Superintendent of Highways, Assessor, Receiver of Taxes and Assessments and Collector, or any of them, and any member of any board, committee, commission or authority who shall have been appointed to such position by act of the Town Board regardless of whether such member serves with or without compensation.
There is hereby authorized the payment or reimbursement by the Town of Lewiston of legal expenses incurred by officers and employees of the Town of Lewiston.
Any Town officer or employee who is the defendant in an action founded upon an allegation of abuse of discretion, or negligence, illegality or unethicality in the performance of his duties, may make application to the Town Board, at any time after commencement of the action, for financial relief to alleviate some of the burden of legal expenses incurred or about to be incurred by said officer or employee in defending said action. Said application shall be in the form prescribed by the Town Board and shall include whatever information said Board deems relevant to its determination; however, said application must include the following: the title of the action, including the name and address of the plaintiff; the content of the charges; a recounting of all the facts and circumstances which led to the initiation of the action; what, if any, damages are alleged; and the name and address of the attorney representing the defendant. Said application shall be accompanied by a copy of all pleadings in the action and by a sworn statement of the subject attorney, which shall state the amount of said attorney's fee, his estimation of what must be done to resolve the litigation, what disbursements are involved and what legal services he proposes to provide for the stated fee, including the estimated time to be spent in the provision of legal services. Nothing herein shall prevent a defendant Town officer or employee from submitting another application at a later date for additional financial assistance, if unforeseen or unexpected additional legal expenses are incurred.
After receipt of an application, and no later than one month thereafter, the Town Board shall study the validity and merits of the defendant Town officer or employee's request and shall determine by resolution whether or not the claim against the officer or employee, as alleged or actually, arose out of the scope of employment and/or performance of duties by such officer or employee. In order to assist in its determination, the Town Board may question any person whom it deems possesses information relevant to such determination, including the defendant's attorney, and may inspect all the pleadings and papers of the subject action, so long as no paper is demanded and studied in public session which might violate the attorney-client privilege, invade the privacy of either the defendant or his attorney or compromise the ability of either to successfully conclude the subject litigation. In order to avoid any such situation, the Town Board, for this reason, may meet in executive session pursuant to, and as permitted by, the Open Meetings Law. In the event that the Town Board determines that the claim did so arise, it shall appropriate and pay sufficient funds, to be paid after the rendering of the described legal services, in accordance with the submitted applications.
In the event that any officer or employee of the Town of Lewiston is successful in defending against an action, and is therein awarded costs pursuant to the directives of § 51 of the General Municipal Law, including a sum for legal expenses, and if said defendant officer or employee has previously been assisted in the satisfaction of legal expenses through an allocation or allocations from the Town of Lewiston, said successful defendant officer or employee shall tender the moneys awarded by the court to the Town of Lewiston, for repayment of said legal expenses to the extent that the Town has paid such expenses.
In the event that a plaintiff is successful in an action against a defendant officer or defendant employee of the Town of Lewiston, and if any judgment rendered in said action is the result of or arises out of the performance of an act or duty by such officer or employee which is within the scope of the acts or duties of said officer or employee, the Town of Lewiston shall indemnify said officer or employee to the full extent of such judgment.