[HISTORY: Adopted by the Town Board of the Town of Marilla 11-6-1986
by L.L. No. 2-1986 (Ch. 15 of the 1999 Code). Amendments
noted where applicable.]
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, but shall not include a volunteer, any person
not compensated for his services or an independent contractor. The term "employee"
shall include a former employee, his estate or judicially appointed personal
representative.
The Town of Marilla.
A.
Upon compliance by the employee with the provisions of § 22-3 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. Such defense shall not be provided where such civil action or proceeding is brought by or on behalf of the Town.
B.
Subject to the conditions set forth in this chapter,
the employee shall be represented by an attorney employed or retained by the
Town for the defense of the employee. 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 the amount of 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 the Town Supervisor as required by § 22-3 of this chapter, the Town Attorney or the Supervisor, as the case may be, shall take the necessary steps, including the retention of any 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 provided in this chapter shall be contingent upon
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
five days after he is served with such document and 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. 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.
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 benefits of this chapter shall be extended to an employee of a negotiating
unit for which an agreement has been negotiated pursuant to Civil Service
Law Article 14, only if such agreement expressly so provides.
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.
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 provided for
any governmental officer or employee by, in accordance with or by reason of
any other provision of the 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.
The Town 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 approval of the amount of settlement by the governing
body of the Town.
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 the intentional wrongdoing or recklessness on the part of the
employee.
Nothing in this chapter shall authorize the Town 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 Town shall indemnify
and save harmless its employees in the amount of any costs, attorney's 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 court of this
state or of the United States.
Upon entry of a final judgment against an 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 Supervisor of the Town; and if not inconsistent
with the provisions of this chapter, the amount of such judgment or settlement
shall be paid by the Town.
This chapter shall apply to any person rendering professional services
to the Town.
