[Added 7-1-1980 by L.L. No. 7-1980]
As used in this article, 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, whether or not compensated,
or a volunteer expressly authorized to participate in a Town-sponsored
volunteer program, but shall not include an independent contractor.
The term "employee" shall also include members of all boards and commissions
of the Town and former employees, or their estates or judicially appointed
personal representatives.
The Town of North Hempstead.
The Town Attorney of the Town of North Hempstead.
A.
Upon compliance by the employee with the provisions of § 23-15.4 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 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.
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. 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 employer or group of employees is entitled to representation by counsel under the provisions of this subsection, the Town Attorney shall so certify to the Comptroller. 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 of this article, by the head of the department, board, commission or agency in which such employee is employed and upon the audit and warrant of the Comptroller. 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 defense assistance to the Town Attorney as required by § 23-15.4 of this Article, the Town Attorney shall take the necessary steps, including the retention of private counsel under the terms and conditions provided in § 23-15.2B of this Article, 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
for lawful damages, provided that the act or omission to act from
which such judgment 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 head of the department, board, commission or
agency in which he is employed any proposed settlement which may be
subject to indemnification by the Town, and if not inconsistent with
the provisions of this Article, such head of the department, board,
commission or agency in which he is employed shall certify such settlement
and submit such settlement and certification to the Town Attorney.
The Town 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 head of the department, board, commission or agency in which
he is employed, and if not inconsistent with the provisions of this
Article, such judgment or settlement shall be certified for payment
by such head of the department, board, commission or agency. If the
Town Attorney concurs in such certification, the judgment or settlement
shall be paid upon the audit and warrant of the Comptroller.
A.
The duty to defend or indemnify and save harmless
prescribed by this Article shall be conditioned upon:
(1)
Delivery, to the Town Attorney by the employee, 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
(2)
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 to act and in
the prosecution of any appeal.
B.
Such deliveries shall be deemed a request by the employee
that the Town provide for his defense pursuant to this Article.
A.
The benefits of this Article 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 Article be construed
to affect, alter or repeal any provision of the Workers' Compensation
Law.
B.
This Article shall not in any way affect the obligation
of any claimant to give notice to the Town under § 50-e
of the General Municipal Law or any other provision of law.
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.
The provisions of this Article shall apply to
all actions and proceedings pending upon the effective date thereof
or thereafter instituted.
Except 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 other level of government or any right
to defense or indemnification, or both, provided for any governmental
officer or employee by, in accordance with or by reason of any other
provisions of law.
If any clause, sentence, paragraph, section,
word or part of this Article is adjudged by any court of competent
jurisdiction to be invalid, the judgment shall not affect, impair
or invalidate the remainder of this chapter but shall be confined
in its operation to the clause, sentence, paragraph, section or part
of this chapter directly involved in the controversy in which such
judgment is rendered.
