Rockland County, NY Chapter 45 Defense and Indemnification

[HISTORY: Adopted by the Rockland County Legislature 3-21-1989 by L.L. No. 2-1989.[1] Amendments noted where applicable.]

[1] Editor's Note: This local law supersedes former Ch. 45, adopted as follows: Art. I, 9-7-1967 by L.L. No. 17-1967; Art. II, 6-16-1981 by L.L. No. 5-1981.

§ 45-1 Definitions.

As used in this chapter, unless the context otherwise requires, the following terms shall have the meanings indicated:

EMPLOYEE

[Amended 6-18-1996 by L.L. No. 10-1996]

Any person holding a position by election, appointment or employment in the service of the County, whether or not compensated or a volunteer expressly authorized to participate in a County-sponsored volunteer program, but shall not include an independent contractor.

A. The term "employee" shall include a former employee, his/her estate or his/her judicially appointed personal representative.

B. Notwithstanding the foregoing, any contractor providing instruction to students at the Rockland County Police Academy shall, for purposes of this chapter only, be deemed an "employee."

§ 45-2 Defense authorized; procedure.

[Amended 11-3-2021 by L.L. No. 6-2021]

A. Upon compliance by the employee with the provisions of § 45-4 of this chapter, the County shall provide for the defense of the employee in any civil action or proceeding in any municipal, state or federal court, or administrative tribunal provision of arising out of any alleged act or omission which occurred while the employee was acting within the scope of the employee's public duties.

(1) This duty shall include, but not be limited to, actions, administrative proceedings or investigations:

(a) Brought to recover for a tort resulting in personal injury or property damage arising from the employee's execution of the responsibilities of the employee's position;

(b) Brought to enforce civil actions related to the provisions of 42 USC Chapter 21, Subchapter 1, including § 1981 or § 1983;

(c) Brought to enforce civil violations of federal or state regulations;

(d) Brought to enforce professional licensing regulations before courts or licensing tribunals for complaints brought against County employees, where:

[1] Holding the professional license is a condition of the employee's position, or a qualification for the employee's job title; and

[2] The proceeding arises from acts which were necessary to the performance of the employee's public duties for the County, and the employee's profession.

(e) An employee:

[1] Receiving an attorney, court, or administrative subpoena, or other request for an interview, concerning events related to the employee's public duties.

[2] Which is related to a pending civil matter or, in the estimation of the County Attorney, is reasonably likely to end in a lawsuit or administrative proceeding against the employee.

[3] Shall be entitled to legal advice and representation in responding to such a demand.

[4] Such an investigation shall be deemed a proceeding for the purpose of this chapter.

(2) This duty to provide for a defense does not arise where such civil proceeding is brought:

(a) By or on behalf of the County; or

(b) In which the County is a complainant against the employee, or the County is conducting an investigation; or

(c) In any action or proceeding brought by an employee, former employee, or employee union against the County.

B. Representation.

(1) Subject to the provisions set forth in § 45-2A of this chapter, the employee shall be entitled to be represented by the County Attorney, except that the employee shall be entitled to be represented by private counsel (also known as "conflict counsel") in any civil judicial proceeding only as follows:

(a) Whenever the County Attorney determines, based upon an investigation and review of the facts and circumstances of the case, that representation by the County Attorney would be inappropriate, or by reason of a conflict of interest or a violation or possible violation of the New York State Rules of Professional Conduct;

(b) Whenever the County Attorney determines, based upon an investigation and review of the facts and circumstances of the case, that representation by the County Attorney would be inadvisable due to the unavailability of resources in the Department of Law; or

(c) Whenever a court of competent jurisdiction, upon proper 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.

(2) Where an employee is entitled to representation by private counsel pursuant to § 45-2B, the County Attorney shall notify the employee in writing of such determination and shall so certify in a communication to the County Executive and the Clerk to the Legislature of Rockland County. The County Executive shall approve or disapprove such representation by private counsel. Upon such approval, the County Executive of Rockland County shall designate the private counsel to be retained and the terms and conditions thereof subject to budgetary appropriations. Upon designation by the County Executive, the employee shall be notified in writing of such determination. Reasonable attorneys' fees approved in advance by the County Executive and litigation expenses shall be paid by the County to such private counsel from time to time during the pendency of the civil action or proceeding, subject to budgetary appropriations.

C. Where the employee delivers a summons, complaint, notice of petition, petition, or other document, that initiates a court or administrative proceeding, or investigation related to a matter that, in the estimation of the County Attorney, is reasonably likely to end in a lawsuit or administrative proceeding against the employee, and a written request for a defense to the County Attorney as required by § 45-4 of this chapter, then the County Attorney shall take all necessary steps on behalf of the employee to represent that employee in the matter and avoid entry of a default judgment pending resolution of any question pertaining to the obligation to provide for a defense.

§ 45-3 Indemnification authorized.

A. The County shall indemnify and save harmless its employees in the amount of any judgment obtained against such employee in any municipal, 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 in good faith and within the scope of his or her public employment or duties. The duty to indemnify and save harmless prescribed by this subsection shall not arise where the injury or damage resulted from acts outside the scope of the employee's public employment or duties as an employee of the County of Rockland or from intentional wrongdoing or recklessness on the part of the employee.

B. Where an employee is represented by private counsel, any proposed settlement which may be subject to indemnification by the County shall be submitted by the outside counsel to the County Attorney and to the County Executive. The County Attorney shall review such proposed settlement and shall give his/her approval if, in his/her judgment, the settlement is in the best interests of the County. After approval by the County Attorney, the settlement shall be paid by the Commissioner of Finance, pursuant to the procedures of the Department of Finance. The County shall not be liable to indemnify or save harmless an employee with respect to any settlement not reviewed and approved by the County Attorney.

C. Where an employee is represented by the County Attorney, any proposed settlement which may be subject to indemnification by the County shall be submitted by the County Attorney to the County Executive where the amount of the settlement exceeds $100,000, exclusive of costs and interest. The County Executive shall review such proposed settlement and shall give his/her approval if, in his/ her judgment, the settlement is in the best interest of the County. After approval by the County Executive, the settlement shall be paid by the Commissioner of Finance, pursuant to the procedures of the Department of Finance. Nothing in this subsection shall be construed to authorize the County to indemnify or save harmless an employee with respect to a settlement not reviewed and approved by the County Executive, except that where the amount of the settlement does not exceed $100,000, exclusive of costs and interest, the County Attorney may authorize a settlement without approval by the County Executive. After approval by the County Attorney or the County Executive, as may be appropriate, the settlement shall be paid by the Commissioner of Finance, pursuant to the procedures of the Department of Finance.

D. Nothing in this chapter shall authorize the County to indemnify or save harmless an employee with respect to punitive or exemplary damages or fines or penalties.

E. Within 10 days of entry of a final judgment against an employee represented by private counsel, a copy of such judgment along with a written statement recommending either payment of the judgment or prosecution of an appeal shall be submitted by the private counsel to the County Attorney, by certified or registered mail, and a protective notice of appeal shall be filed by private counsel with the appropriate court, whereupon the County Attorney shall authorize either payment of the judgment or prosecution of an appeal, whichever may be in the best interests of the County. Where payment of the judgment is authorized, it shall be paid by the Commissioner of Finance, pursuant to the procedures of the Department of Finance. Where prosecution of any appeal is authorized, reasonable attorneys' fees and litigation expenses, authorized in advance by the County Attorney, shall be paid by the County to such private counsel from time to time during the pendency of the appeal, subject to budgetary appropriation.

F. Within 10 days of entry of a final judgment against an employee represented by the County Attorney, a copy of such judgment along with a written statement recommending either payment of the judgment or prosecution of an appeal shall be submitted by the County Attorney to the County Executive, and, if appropriate, a protective notice of appeal shall be filed by the County Attorney with the appropriate court; whereupon the County Executive shall authorize either payment of the judgment or prosecution of an appeal, whichever may be in the best interests of the County. Where payment of the judgment is authorized, it shall be paid by the Commissioner of Finance, pursuant to the procedures of the Department of Finance.

§ 45-4 Conditions and restrictions.

A. The duty to defend or indemnify and save harmless prescribed by this chapter shall be conditioned upon:

(1) Delivery by the employee to the County Attorney, Deputy County Attorney, or an Assistant County Attorney at the office of the Department of Law of the original or a copy of any summons, complaint, process, notice, notice of claim, demand or pleading within five days after said employee is served with such document and prior to the entry of any default judgment; together with

(2) A written request from the employee for a defense; and

(3) The County shall have the full cooperation of the employee in the defense of such action or proceeding and in defense of any action or proceeding against the County and in the prosecution of any appeal.

B. Notwithstanding anything contained in this chapter, the duty to defend or indemnify and save harmless any employee, as prescribed by this chapter, shall be further conditioned upon the full and complete cooperation of the employee at each and every stage of each and every proceeding which may occur. The full and complete cooperation of the employee shall include, but not be limited to, providing oral and/or written statements to the County Attorney, sworn or affirmed, where required, by the County Attorney or such persons as the County Attorney may designate; appearance by the employee at such designated times and places for such statements; full, truthful and complete cooperation in investigations and testimony and discussions and meetings and actions and proceedings and hearings and trials; or such other times and places or activities as the County Attorney determines are needed to protect the interests of the County of Rockland.

§ 45-5 Employee rights.

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.

§ 45-6 Notice of claims not affected.

This chapter shall not in any way affect the obligation of any claimant to give notice of claim to the County under any provision of law.

§ 45-7 Insurance rights 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.

§ 45-8 When applicable.

The provisions of this chapter shall apply to all actions and proceedings instituted on or after the effective date thereof.

§ 45-9 Other rights not affected.

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 County or any other level of government, 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 County, state or federal statutory or common law.