[HISTORY: Adopted by the Town Board of the
Town of Neversink as indicated in article histories. Amendments noted
where applicable.]
[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.
A.
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.
B.
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.
C.
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.
[Adopted 4-14-2021 by L.L. No. 1-2021]
The purpose of this article is to supersede § 23 of the
Town Law and § 3, Subdivision 1, of the Public Officers Law in
order to broaden the residency requirements for the Town Attorney
of the Town of Neversink.
The Town Board may appoint any attorney licensed to practice
law in the State of New York and who resides in the County of Sullivan
as Town Attorney.