[HISTORY: Adopted by the Town Board of the Town of Neversink; Art. I, 10-8-1980 as L.L. No. 2-1980. Amendments noted where applicable.]
Article I Defense and Indemnification
[Adopted 10-8-1980 as L.L. No. 2-1980]
As used in this Article, unless the context otherwise requires the following terms shall have the meanings indicated:
- The Town Board of the Town of Neversink.
- Any person holding a position by election, appointment or employment in the service of the Town of Neversink, but shall not include a volunteer, any person not compensated for his or her services or an independent contractor. The term "employee" shall include a former employee, his estate or judicially appointed personal representative.
- The Town of Neversink.
Upon compliance by the employee with the provisions of § 11-3 of this Article, the town shall provide for the defense of the employee in any civil action or proceeding in any state or federal court or administrative agency 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.
Subject to the conditions set forth in this Article, the employee shall be represented by the Town Attorney or an attorney employed or retained by the town for the defense of the employee. The Board shall employ or retain any attorney for the defense of the employee whenever the Town Attorney determines, based upon an investigation and review of the facts and circumstances of the case, that representation by the Town Attorney would be inappropriate or a court of competent jurisdiction determines that a conflict of interest exists and that the employee cannot be represented by the Town Attorney. 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 Board that the employee is entitled to representation under the terms and conditions of this Article. 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 by the Town Attorney 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 defense to the Town Attorney as required by § 11-3 of this Article, the Town Attorney shall take the necessary steps, including the retention of an 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 Article shall be contingent upon delivery to the Town Attorney 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 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 Article, unless the employee shall state in writing that a defense is not requested.
The benefits of this Article 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 Article be construed to affect, alter or repeal any provisions of the Workers' Compensation Law.
The benefits of this Article 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 Article 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 Article, the provisions of this Article 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.
The provisions of this Article shall apply to all actions and proceedings specified herein which have been commenced, instituted or brought on or after the effective date of this Article.