[HISTORY: Adopted by the Town Board of the Town of Wallkill 10-11-1980 by L.L. No. 7-1980. Amendments noted where applicable.]
Code of Ethics — See Ch. 21.
The purpose of this chapter is to provide legal and financial protection for individuals serving the Town of Wallkill from lawsuits 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 recognizes that the County of Orange, as well as other towns in New York State, and the State of New York have enacted similar provisions for the legal and financial security of their officers and employees and that such security is also necessary and desirable 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 of Wallkill 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 county and state employees, so as to continue to attract qualified individuals to local government service.
As used in this chapter, unless the context otherwise requires, 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 Wallkill, whether or not compensated, or a volunteer expressly authorized to participate in a town 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 and shall also include a member of any board or agency appointed by the Supervisor and/or Town Board.
Upon compliance by the employee with the provisions of § 17-5 of this chapter, the Town of Wallkill, through the office of counsel appointed by the town or by means of any applicable insurance program maintained by 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 Title 42 of the United States Code.
Subject to the conditions set forth in Subsection A of this section, the employee shall be entitled to be represented by counsel appointed by 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 town's counsel determines, based upon his investigation and review of the facts and circumstances of the case, that representation by the town's counsel 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 Town Board 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. 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.
Where the employee delivers process and a request for a defense to the Town Board as required by § 17-5 of this chapter, the Town Board shall take the necessary steps, including the retention of counsel under the terms and conditions provided in Subsection B above, 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 of Wallkill 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 action shall not arise where the act of the employee results in a conviction of a misdemeanor or higher crime under the New York State Penal Law. The duty to defend or indemnify shall not arise where the action or proceeding is brought by or on behalf of the town against such employee.
[Amended 9-13-2001 by L.L. No. 4-2001]
The determination of an issue of whether or not an employee was acting within the scope of his public employment or duties at the time of the occurrence, act a omission giving rise to a claim, shall be made by the Town Board on advice from counsel for the town. In such cases where a majority of Town Board members are named as defendants, the determination of whether such Board members were acting within the scope of their employment shall be made by counsel for the town.
[Amended 9-13-2001 by L.L. No. 4-2001]
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 of Wallkill and, if not inconsistent with the provisions of this section, the Town Board shall submit such settlement to an attorney appointed by 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 counsel for the town.
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 Town Board; and if not inconsistent with the provisions of this section, such judgment or settlement shall be certified for payment by the Town Board. If the attorney concurs in such certification, the judgment or settlement shall be paid by the Town Board.
The duty to defend or indemnify and save harmless provided by this chapter shall be conditioned upon delivery to the Supervisor, by the employee, of the original or a copy of any summons, complaint, process, notice, demand or pleading within five days after he is served with the same and the full cooperation of the employee in the defense of such action or proceeding 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.
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.
[Amended 9-13-2001 by L.L. No. 4-2001]
The provisions of this chapter shall apply to all actions and proceedings pending upon the effective date thereof or thereafter instituted and the amount of any such judgment or order obtained against such employee, or the amount of any town-approved settlement, for which the town will indemnify and save harmless an employee consistent with this section, including any amounts designated as compensatory, special, punitive or other damages, including sanctions, fines, costs and attorney fees.
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 Wallkill or 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.