[HISTORY: Adopted by the Town Board of the Town of Niskayuna 3-19-1981
as L.L. No. 1-1981. Section 11-4 amended at time of adoption
of Code; see Ch. 1, General Provisions, Art. I. Other amendments noted where
applicable.]
[Amended 7-9-1981 by L.L. No. 4-1981]
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, but shall not include a volunteer, any person
not compensated for his services or an independent contractor, except that
members of the Niskayuna Zoning Board of Appeals shall be included within
the meaning of the term "employee." The term "employee" shall include a former
employee, his estate or judicially appointed personal representative.
The Town of Niskayuna.
A.
Upon compliance by the employee with the provisions of § 11-3 of this chapter, 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 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, nor shall such defense be provided for any person who willfully or maliciously committed an act of wrongdoing which resulted in or contributed to a civil action or proceeding.
[Amended 7-9-1981 by L.L. No. 4-1981]
B.
Subject to the conditions set forth in this chapter,
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 Town Board shall
employ or retain an attorney for the defense of the employee whenever the
Town does not have a Town Attorney; the Town Board determines, based upon
its 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 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 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 a defense to the Town Attorney or the Town Supervisor as required by § 11-3 of this chapter, the Town Attorney or the Supervisor, as the case may be, 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 chapter shall be contingent upon
delivery to the Town Attorney or, if none, to the Town Supervisor 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 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 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.
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.
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 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 chapter shall apply to all actions and proceedings
specified herein which have been commenced, instituted or brought on or after
the effective date of this chapter.