[HISTORY: Adopted by the Town Board of the Town of Van Buren 5-13-1981. Amendments noted where applicable.]
The purpose of this chapter is to provide legal and financial protection for those individuals serving the Town of Van Buren from losses from legal actions which may be brought against them in their individual or collective capacity for their actions taken while in the performance of their official duties and responsibilities. Further, the protection to be afforded by this chapter is to be supplemental to, but not instead of, existing or future insurance policies carried by the town for the protection of its employees. In enacting this chapter, the Town Board of the Town of Van Buren finds that such protective legislation is required for protection of local personnel so as to continue to attract qualified individuals to local government service. Further, the Town Board does not intend to limit or otherwise abrogate any existing right or responsibility of the town or its employees with regard to indemnification or legal defense.
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 Van Buren, whether or not compensated, or a volunteer expressly authorized to participate in a municipally-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.
- The Town of Van Buren.
None of the provisions of this chapter shall apply when it can be shown that the act or omission is covered by any policy of insurance carried by the town for protection of the employees.
Upon compliance by the employee with the provisions of § 22-5 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 which 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 §§ 1981 or 1983 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 Town of Van Buren.
Subject to the conditions set forth in this chapter, the employees shall be represented by an attorney employed or retained by the town for the defense of the employees. 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 any employees 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 as required by § 22-5 of this chapter, the town shall take the necessary steps 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 pertaining to the obligation to provide for a defense.
The town 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 said judgment or settlement arose occurred while the employee was acting within the scope of his public employment or duty; the duty to indemnify and save harmless prescribed by this subsection shall not arise where the injury or damage resulted from intentional wrongdoing or recklessness on the part of the employee.
An employee in litigation shall cause to be submitted to the Town Board any proposed settlement which may be subject to indemnification by the town and if not inconsistent with the provisions of this section, the Supervisor shall certify such settlement, and submit such settlement and certification to the attorney for the town. The attorney for the town shall review such proposed settlement as to form and amount, and shall give his approval if in his judgment the settlement is in the best interest of the town. Any compromise or settlement shall be presented and prosecuted pursuant to the terms of § 68 of the Town Law to the extent that they are applicable. Nothing in this subsection shall be construed to authorize the town to indemnify or save harmless an employee with respect to a settlement not so reviewed and approved pursuant to the provisions of this subsection.
Upon entry of a final judgment against the employee, or upon the settlement of a claim, the employee shall cause to be served 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 section, such judgment or settlement shall be certified for payment by such Supervisor upon approval by the attorney for the town.
The duty to defend or indemnify and save harmless provided by this chapter shall be conditioned upon:
Delivery to the attorney for the town or his assistant, at his office, by the employee of the original or a copy of any summons, complaint, process, notice, demand or pleading within 10 days after he is served with such document.
The full cooperation of the employee in the defense of such action or proceeding and in defense of any action or proceeding against the state based upon the same act or omission, and in the prosecution of any appeal. Such delivery shall be deemed a request by the employee that the town provide for his defense pursuant to this chapter.
The benefits of this chapter 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 chapter be construed to effect, alter or repeal any provision 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 apply to all actions and proceedings pending upon the effective date of this chapter or thereafter instituted.
Except as otherwise specifically provided in this chapter, 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 of 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.