[HISTORY: Adopted by the Town Board of the Town of Brant 4-23-1980
as L.L. No. 2-1980. Sections 15-4C and 15-5 amended at time
of adoption of Code; see Ch. 1, General Provisions, Art. I. Other amendments
noted where applicable.]
The purpose of this chapter is to provide legal and financial protection
for those individuals serving the Town of Brant from losses which may be brought
against them in their individual capacity for actions taken while in the performance
of their official duties and responsibilities. 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 such security is also required for local personnel. By enactment
of this chapter, the Town Board does not intend to limit or otherwise abrogate
any existing right or responsibility of the town or its employees with regard
to indemnification or legal defense. It is solely the intent of this chapter
to provide similar coverage for local employees as is presently provided for
state employees, so as to continue to attract qualified individuals to local
government service.
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 Brant, 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 compliance by the employee with the provisions of
§ 15-5 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 compliant to have occurred while the employee was acting within the scope
of his public employment or duties or which is brought to enforce a provision
of 42 U.S.C. § 1981 or 1983. 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 Brant.
B.
Subject to the conditions set forth in Subsection A of
this section, the employee shall be entitled to be represented by the Town
Attorney; provided, however, that the employee shall be entitled to representation
by private counsel of his choice in any civil judicial proceeding whenever
the Town Attorney determines, based upon his investigation and review of the
facts and circumstances of the case, that representation by the Town Attorney
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 of his choice. The Town Attorney shall notify the employee,
in writing, of such determination that the employee is entitled to be represented
by private counsel of his choice. The Town Attorney 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 the employee
or group of employees is entitled to representation by private counsel under
the provisions of this section, the Town Attorney shall so certify to the
Town Board. Reasonable attorney's 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, subject to certification that the employee
is entitled to representation under the terms and conditions of this section
by the head of the department, commission, division, office or agency in which
such employee is employed and upon the audit and warrant of the Town Treasurer.
Any dispute with respect to representation of multiple employees by a single
counsel or the amount of litigation expenses or the reasonableness of attorneys'
fees shall be resolved by the court upon motion or by way of a special proceeding.
C.
Where the employee delivers process and a request for
a defense to the Town Attorney as required by § 15-5 of this chapter,
the attorney shall take the necessary steps, including the retention of private
counsel 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 pertaining to the obligation to provide for a defense.
A.
The town shall indemnify and save harmless its employees
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, provided that
the act or omission from which such judgement or settlement arose occurred
while the employee was acting within the scope of his public employment or
duties. The duty to indemnify and save harmless prescribed by this section
shall not arise where the injury or damage resulted from intentional wrongdoing
or recklessness 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 Town Attorney. The Attorney shall review
such proposed settlement as to form and amount and shall give his approval
if, in his judgment, 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 not so reviewed and approved
by the Town Attorney.
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 for this section; such judgment
or settlement shall be certified for payment by such Supervisor. If the Attorney
concurs in such certification, the judgment or settlement shall be paid upon
the audit and warrant of the Town Treasurer.[1]
The duty to defend or indemnify and save harmless provided by this chapter
shall be conditioned upon: delivery to Town Board by the employee of the original
or a copy of any summons, complaint, process, notice, demand or pleading within
10 days after he is served with such document and 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. Such delivery shall be deemed a request
by the employee that the town provide for his defense pursuant to this chapter.
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 section be construed to affect, alter or repeal
any provision 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.
The provisions of this section shall apply to all actions and proceedings
pending upon the effective date thereof or thereafter instituted.
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 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.
