[HISTORY: Adopted by the Town Board of the Town of Esopus 8-11-1993 by L.L. No. 8-1993. Amendments noted where applicable.]
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 by the Town Board or full- or part-time employment in the service of the town, but shall not include a volunteer or an independent contractor. The term "employee" shall include a former employee, his estate or judicially appointed personal representative.
- The Town of Esopus.
Upon compliance by the employee with the provisions of § 7-3, the town shall provide for the defense of the employee in any civil action or civil 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 or which is brought to enforce a provision of Title 42 of the United States Code. Such defense shall not be provided where such civil action or civil proceeding is brought by or on behalf of the town against the employee. No defense shall be provided for defense of any criminal action or criminal proceeding against an employee, except for Title 42 of the United States Code.
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 civil proceeding, subject to certification by the Town Board 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 multiple employees or 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 Supervisor as required by § 7-3, the Town Board shall take the necessary action, including the retention of an attorney under the terms and conditions provided in Subsection B, 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 Supervisor of the original or a copy of any summons, complaint, process, notice, demand or pleading within five days after the employee is served with such document (or within one day if the legal document demands a response earlier than five days) 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 or her 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.
There shall be no duty of the town to defend or indemnify any employee unless the Town Board finds:
In the event that the town assumes the duty of defense and in the event that a court of law determines that the employee acted in bad faith or with malice or in a wanton or willful manner so as to cause the claim or was not acting in the bona fide discharge of his or her municipal duties, the employee shall reimburse the town for all expenses incurred for defense of claims arising out of the alleged civil action or civil proceeding. Upon such finding by a court of law, the town shall have no duty to satisfy any judgment or claim against the employee, and in the event that the town has satisfied or is ordered to satisfy said judgment or claim, the employee must reimburse the town for any sum paid for said satisfaction.
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.
Unless 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 state or federal statutory or common law.