Town of Newburgh, NY Chapter 12 Defense and Indemnification

[HISTORY: Adopted by the Town Board of the Town of Newburgh 6-15-1981 as L.L. No. 1-1981. Amendments noted where applicable.]

§ 12-1 Purpose. [1]

The purpose of this chapter is to provide legal and financial protection for those individuals serving the Town of Newburgh 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. By enactment of this chapter, the Town of Newburgh does not intend to limit or otherwise abrogate any existing rights or responsibility of the Town of Newburgh or its employees with regard to indemnification or legal defense.

[1] Editor's Note: By resolution adopted 9-8-1992, the town conferred on all employees the benefits of § 18 of the Public Officer's Law to supplement and be in addition to the defense and indemnification protection conferred herein.

§ 12-2 Definitions.

As used in this chapter, the following terms shall have the meanings indicated:

EMPLOYEE

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. The term "employee" shall include a former employee, his estate or judicially appointed personal representative and shall also include a member of any board or agency appointed by the Town Board.

TOWN

The Town of Newburgh.

§ 12-3 Legal defense authorized.

A. Upon compliance by the employee with the provisions of § 12-6 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. 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 chapter, the employee shall be represented by the Town Attorney, the Attorney for the town or an attorney employed or retained by the town or its insurance carrier for the defense of the employee. Except where covered by an insurance policy carried by the town, reasonable attorney's fees and litigation expenses shall be paid by the town to the Attorney for the town or such attorney employed or retained, from time to time, during the pendency of the civil action or proceeding subject to certification by the Town Supervisor that the employee it 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, Attorney for the town or 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 § 12-6 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.

§ 12-4 Indemnification.

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 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 and shall not be applicable to an award for punitive damages.

§ 12-5 Determination of scope of employment.

The determination of an issue of whether or not an employee was acting within the scope of his public employment or duties at the time of the occurrence, act or omission giving rise to a claim shall be made by the Town Board, on advice from the Town Attorney or Attorney for the town. Any such determination shall be subject to review by a court of competent jurisdiction in the manner prescribed by law.

§ 12-6 Cooperation of employee required.

A. The duties to defend and indemnify provided in this chapter shall be contingent upon:

(1) 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 (5) 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 defense of any action or proceeding against the town based upon the same act or omission and in the prosecution of any appeal.

B. 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.

§ 12-7 Limits on benefits.

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.

§ 12-8 Rights of insurer not affected.

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.

§ 12-9 No abrogation of immunity or other right to defense.

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.

§ 12-10 Applicability.

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.