[HISTORY: Adopted by the Board of Supervisors (now County Legislature)
of the County of Sullivan 5-11-1987 by L.L. No.
1-1987. Amendments noted where applicable.]
As used in this chapter, unless the context otherwise requires, the
following terms shall have the meanings indicated:
The County of Sullivan, and where the following have agreed by resolution
to confer the benefits of this chapter upon their employees and be responsible
for the costs incurred thereby, the Board of Trustees of the Sullivan County
Community College, the County of Sullivan Industrial Development Agency, and
any other public benefit corporation, public improvement, special district,
public authority, commission or agency organized by or under the authority
of the County of Sullivan.
The County Attorney of the County of Sullivan.
The County Legislature of the County of Sullivan.
Any person holding a position by election, appointment or employment
in the service of the county, whether or not compensated, or a volunteer expressly
authorized to participate in a county-sponsored volunteer program, but shall
not include the Sheriff of the county or an independent contractor. The term
"employee" shall include a former employee, his estate or judicially appointed
personal representative.
A.
Upon compliance by the employee with the provisions of § 27-4 of this chapter, the county 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 allegedly occurred while the employee was acting within the scope of his public employment or duties. This duty to provide for a defense shall not arise where such civil action or proceeding is brought by or on behalf of the county.
B.
Subject to the provisions set forth in Subsection A of this section, the employee shall be entitled to be represented by the County Attorney, except that the employee shall be entitled to be represented by private counsel in any civil judicial proceeding as follows:
(1)
Whenever the county determines, based upon an investigation
and review of the facts and circumstances of the case, that representation
by the County Attorney would be inappropriate;
(2)
Whenever the County Attorney determines, based upon an
investigation and review of the facts and circumstances of the case, that
representation by the County Attorney would be inadvisable due to the unavailability
of resources in the County Attorney's office;
(3)
Whenever a court of competent jurisdiction, upon proper
motion or by a special proceeding, determines that a conflict of interest
exists and that the employee is entitled to be represented by private counsel;
or
(4)
Where such representation by private counsel is approved
by act of the County Legislature.
C.
Where an employee is entitled to representation by private counsel pursuant to Subsection B(1), (2) or (3) hereof, the County Attorney shall notify the employee in writing of such determination and shall so certify in a communication to the County Legislature. Where the Legislature approves such representation, it shall designate the private counsel to be retained. Upon approval by the County Legislature, the Clerk of the Legislature shall notify the employee in writing of such determination. Reasonable attorneys' fees for such private counsel shall be paid from time to time during the pendency of the civil action or proceeding, subject to audit and approval by the County Legislature. The County Attorney may require, as a condition to payment of the fees and expenses of such representation, that appropriate groups of such employees be represented by the same counsel.
D.
Any dispute with respect to representation of multiple
employees by a single counsel or the amount of litigation expenses or the
reasonableness of attorneys' fees shall be resolved by the court upon
motion or by way of a special proceeding.
E.
Where the employee delivers process and a written request for a defense to the County Attorney in accordance with § 27-4 of this chapter, the County Attorney shall take the necessary steps 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.
A.
The county shall indemnify and save harmless its employees
in the amount of any judgment obtained against such employees 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 review and approval of the
form and amount of the settlement by the County Legislature. Nothing in this
chapter shall be construed to authorize or require the county to indemnify
and save harmless an employee with respect to a settlement if not so reviewed
and approved by the County Legislature.
B.
Except as otherwise provided by law, the duty to indemnify
and save harmless prescribed by this chapter shall not arise where the injury
or damage resulted from intentional wrongdoing or recklessness on the part
of the employee.
C.
Nothing in this chapter shall authorize the county 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
county shall indemnify and save harmless its employees in the amount of any
costs, attorneys' fees, damages, fines or penalties which may be imposed
by reason 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 state or federal court.
D.
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 County Attorney; and
if not inconsistent with the provisions of this chapter, the amount of such
judgment or settlement shall be paid by the county upon audit and approval
by the County Legislature.
The duty to defend or indemnify and save harmless prescribed by this
chapter shall be conditioned upon:
A.
Delivery by the employee to the County Attorney of a
written request to provide the employee's defense, together with 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; and
B.
The full cooperation of the employee in the defense of
such action or proceeding and in defense of any action or proceeding against
the county based upon the same act or omission, and in the prosecution of
any appeal.
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 section be construed to affect, alter or repeal
any provision of the Workers' Compensation Law.
This chapter shall not in any way affect the obligation of any claimant
to give notice to the county under § 50-e of the General Municipal
Law, § 52 of the County Law, or any other provision of 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.
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 to liability available to or conferred
upon any employee or any right to defense or indemnification provided for
any employee by, in accordance with, or by reason of any other provision of
state or federal statutory or common law.
If any provision of this chapter or the application thereof to any person
or circumstance be held unconstitutional or invalid in whole or in part by
any court, 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.
The provisions of this chapter shall apply to all actions and proceedings
pending upon the effective date thereof or thereafter instituted.
