[HISTORY: Adopted by the Town Board of the Town of Newburgh 6-15-1981
as L.L. No. 1-1981. Amendments noted where applicable.]
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.
As used in this chapter, 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. 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.
The Town of Newburgh.
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.
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.
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.
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.
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.