[HISTORY: Adopted by the Town Board of the Town of Blooming Grove 5-12-1980
by L.L. No. 1-1980 (Ch. 160 of the 1975 Code). Amendments
noted where applicable.]
The purpose of this chapter is to provide legal and financial protection
for those individuals, serving the Town of Blooming Grove, from losses which
may result from legal action which may be brought against them in their individual
capacity for actions taken while in the performance of their official duties
and responsibilities. In enacting this chapter, the Town Board finds that
the State of New York has enacted similar provisions for the legal and financial
security of its officers and employees and further finds that such security
is also required for local personnel. By enactment of this chapter, 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. It is solely the intent of this chapter to provide similar
coverage for local employees as is presently provided for state employees,
so as to continue to attract qualified individuals to local government service.
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 Blooming Grove, 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.
A.
Upon compliance by the employee with the provisions of § 7-5 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 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 Blooming Grove.
B.
Subject to the conditions set forth in Subsection A, above, of this section, the employee shall be entitled to be represented by the attorney for the town; provided, however, that the employee shall be entitled to representation by private counsel of his choice in any civil judicial proceeding whenever the attorney for the town determines, based upon his investigation and review of the facts and circumstances of the case, that representation by the attorney for the town would be inappropriate or whenever a court of competent jurisdiction, upon appropriate 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 of his choice. The attorney for the town shall notify the employee, in writing, of such determination that the employee is entitled to be represented by private counsel of his choice. The attorney for the town 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. If the employee or group of employees is entitled to representation by private counsel under the provisions of this chapter, the attorney for the town shall so certify to the Board of Trustees. Reasonable attorneys' fees and litigation expenses shall be paid by the town to such private counsel from time to time during the pendency of the civil action or proceeding subject to certification that the employee is entitled to representation under the terms and conditions of this section by the head of the department, commission, division, office or agency in which such employee is employed and upon the audit and warrant of the Town Supervisor. 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.
C.
Where the employee delivers process and a request for a defense to the attorney for the town as required by § 7-5 of this chapter, the attorney shall take the necessary steps, including the retention of private counsel under the terms and conditions provided in Subsection B, above, 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.
A.
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 such judgment or settlement arose occurred
while the employee was acting within the scope of his public employment or
duties. The duty to indemnify and save harmless prescribed by this section
shall not arise where the injury or damage resulted from intentional wrongdoing
or recklessness on the part of the employee.
B.
An employee represented by private counsel 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 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. 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 by the attorney for the town.
C.
Upon entry of a final judgment against the employee,
or upon the settlement of the 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 chapter, such judgment
or settlement shall be certified for payment by such Supervisor. If the attorney
concurs in such certification, the judgment or settlement shall be paid upon
the audit and warrant of the Supervisor.
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; and 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 affect, alter or repeal
any provision of the Workers' Compensation Law.
A.
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.
B.
The provisions of this chapter shall apply to all actions
and proceedings pending upon the effective date thereof or thereafter instituted.
C.
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, or any right to defense
and/or indemnification provided for an governmental officer or employee by,
in accordance with, or by reason of, any other provision of state or federal
statutory or common law.
