[HISTORY: Adopted by the Town Board of the
Town of Chautauqua 6-11-1990 by L.L. No. 3-1990. Amendments noted where
applicable.]
The purpose of this chapter is to provide representation
and indemnification to the extent set out herein for elected and appointed
officials, as well as other public employees, who are sued civilly
in their individual capacity for alleged acts or omissions while they
were acting within the scope of their official duties. In enacting
this chapter, the Town Board finds that the State of New York has
enacted similar provisions for the legal and financial security of
its officers and employees and further finds that similar security
is also required for those in service for the Town of Chautauqua.
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 Chautauqua, whether or not
compensated, or a volunteer expressly authorized to participate in
a municipally 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.
A.
Upon strict compliance by the employee with the provisions of § 16-5 of this chapter and upon the written recommendation of the Attorney for the Town that the act or omission alleged occurred within the scope of the employee's public employment or duties and such act or omission was done in good faith, without malice and without intentional or reckless conduct and that there is not insurance carried by the Town of Chautauqua that will respond to the action or proceeding brought against the employee, then the Town shall provide for the defense of the employee in any civil action or proceeding in any state or federal court to the extent herein set out and arising out of any alleged act or omission which occurred, or is alleged in the complaint to have occurred, while the employee was acting in good faith and without malice and without intentional or reckless conduct and within the scope of his public employment or duties, or which is brought to enforce a provision of § 1981 or § 1983 of Title 42 of the United States Code. This duty to provide for a defense shall not arise where such civil action or proceeding is brought by or on behalf of the Town of Chautauqua.
B.
Subject to the conditions set out in this chapter,
the employee shall be entitled to be represented by the Attorney for
the Town; provided, however, that the employee shall be entitled to
representation by private counsel in any civil judicial proceeding
whenever the Attorney for the Town determines, based upon his investigation
and review of the facts and circumstances of the case, that representation
by the Attorney for the Town 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. The
Attorney for the Town 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. If it has been
determined that an employee or group of employees is entitled to representation
by private counsel under the provisions of this section, the Attorney
for the Town shall so certify to the Town Board, and thereupon, reasonable
attorney fees and litigation expenses shall be paid by the Town to
such private counsel from time to time during the pendency of the
civil action or proceeding upon certification by the Attorney for
the Town that the employee is entitled to representation under the
terms and conditions of this chapter and also upon certification by
the head of the department, board, commission, division, office or
agency in which such employee is employed and upon the audit and warrant
of the Town Supervisor. Nothing herein contained shall prevent an
employee from employing his or her own counsel at the expense of employee.
C.
Where the employee delivers process and a request for a defense to the Attorney for the Town as required by § 16-5 of this chapter, the Attorney for the Town shall take the necessary steps, including the retention of private counsel where required under the terms and conditions of this chapter, 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.
A.
The Town shall indemnify and save harmless its employees
to the extent herein set out, 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 not paid by the Town's insurance carrier,
provided that the act or omission from which such judgment or settlement
arose occurred while the employee was acting in good faith and within
the scope of his public employment or duties, except that the duty
to indemnify and save harmless prescribed by this section shall not
arise where the injury or damage resulted from intentional wrongdoing,
malice or reckless conduct on the part of the employee.
B.
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 and, if not inconsistent
with the provisions of this section, the Supervisor shall certify
such settlement and submit such settlement and certification to the
Attorney for the Town. The Attorney for the Town shall review such
proposed settlement as to form and amount, and shall render a report
as to whether in his professional opinion the settlement is in the
best interest of the Town. Nothing in this section shall be construed
to authorize the Town to indemnify or save harmless an employee with
respect to a settlement that has not been first reviewed by the Attorney
for the Town and the Supervisor and approved by the Town Board.
C.
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 Supervisor, and if not inconsistent with the provisions of
this section, such warrant shall then be issued by the Supervisor.
The duty to defend or indemnify and save harmless
provided by this chapter shall be conditioned upon:
A.
Delivery to the Attorney for the Town or his assistant,
at his office, by the employee, of a written request to provide for
his or her defense, together with the original or a complete copy
of any and all summons, complaint, process, notice, demand or pleading,
within 10 days after he is served with such document; and
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
B.
The full cooperation of the employee in the defense
of such action or proceeding and in defense of any action or proceeding
against the Town based upon the same act or omission, and in the prosecution
of any appeal resulting therefrom; and
C.
Compliance with all other provisions of this chapter
and cooperation with and obedience to the requests of the Town insurance
carrier(s).
A.
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.
B.
Any conditions imposed or legal representation offered
by an insurer of the Town of Chautauqua providing insurance which
may respond to the action or proceeding brought against the employee
shall supersede any right, procedure or privilege conferred by this
chapter.
C.
This chapter does not extend to sums assessed in punitive
or exemplary damages, fines or penalties or recoveries pursuant to
§ 51 of the General Municipal Law.
D.
The rights and obligations afforded employees by this
chapter are limited to those specifically set out herein.
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 the Town or any unit, entity,
officer or employee of the Town, 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.
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.
