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HomeMy WebLinkAboutLL 10 of 1998 Legal Defense of Town Employees-OfficersLOCAL LAW NO.10 FOR THE YEAR 1998 A LOCAL LAW AMENDING LOCAL LAW NO.2 OF THE YEAR 1983 PROVIDING FOR THE LEGAL DEFENSE AND INDEMNIFICATION OF TOWN OF ITHACA OFFICERS AND EMPLOYEES Be it enacted by the Town Board of the Town of Ithaca as follows: A.Local Law No.2 of the year 1983 is hereby amended so that the local law,in its entirety,shall read as follows: "Section 1.As used in this local law,unless the context otherwise requires: a. The term "employee"shallmeananyTown commissioner,member of a Town board or commission.Town officer.Town employee.Town volunteer expressly authorized by the Town to participate in a publicly sponsored volunteer program,or any other person holding a Town position by election,appointment or employment in the service of the Town,whether or not compensated,but shall not include an independent contractor.The term employee shall include a former employee of the Town,his estate or judicially appointed personal representative. b.The term "Town"shall mean Town of Ithaca. Section 2. a.Upon compliance by the employee with the provisions of Section 3of this local law, die Town shall provide for the defense of the employee in any civil action or proceeding in any state or federal court arising outof any alleged actor omission which occurred or is alleged in the complaint to have occurred while the employee was acting or in good faith purporting to act within the scope of his public employment or duties including, without limitation,any civil action or proceeding arising out of any alleged act or omission in which it is alleged that the officer or employee has violated the civil rights of the claimant,petitioner or plaintiffunder Sections 1981 and 1983 of the U.S.Civil Rights Act (42 U.S.C.Sections 1981 and 1983).Such defense shall not be provided where such action or proceeding is brought byor on behalf of the Town. b.Subject to the conditions set forth in this local law,the employee shall be represented by the Town attorney or an attorney employed or retained by the Town for the defense of the employee.The Town Board of the Town shall employ or retain an attorney for the defense of the employee whenever (1)the Town does not have a Town attorney,(2) the Town Board of the Town determines based upon its investigation and review of the facts and circumstances of the case that representation by the Town,attorney would be inappropriate,or (3) a Court of competent jurisdiction determines that a conflict of interest exists and that the employee cannot be represented by the Town attorney. indemni.ll,wpSlithMocallaw September4, 19983:55pm Reasonable attorneys'fees and litigation expenses shall be paid by the Town to such attorney employed or retained,from time to time,during the pendency of the civil action or proceeding subject to certification by the Supervisor thatthe employee is entitled to representation under the terms and conditions of this local law.Payment of such fees and expenses shall be made in the same manner as payment of other claims and expenses of theTown. Anydisputewith respect to representation of multiple employees bytheTown attorney or by 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. Wherethe employee delivers process and request fora defense to the Town attorney or the Supervisor as required by Section 3 of this local law,the Town attorney or the Supervisor,as the case may be,shall take the necessary steps,including the retention of an attorney underthe termsand conditions provided in paragraph (b) of this section,on behalfof the employee to avoid entryof a default judgment,pending resolution of any question relating to the obligation of the Townto provide a defense. d.Subject to the conditions set forth in this local law,thetown shall indemnify and save harmless its employees inthe amount of any judgment obtained against such employees in a 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 claim arose occurred while the employee was acting within the scope of his public employment duties;provided further that in the case of a settlement, the duty to indemnify and save harmless shall be conditioned upon the approval of the amount of settlement by the Town Board of the Town.Thedutyto indemnify and save harmless prescribed by this subdivision shallnot arisewhere(1)theinjuryor damage resulted from intentional wrongdoing or recklessness on the partofthe employee,or (2)with respect to punitive or exemplary damages,fines or penalties,or money recovered from an employee pursuant to Section 51 of the General Municipal Law,provided,however,the Town shall indemnify and save harmless its employees in the amount of any costs,attorneys'fees,damages,fines or penalties which may be imposed by reason of an adjudication thatan employee,acting within the scope of his public employment or duties,has,without willfulness or intent on his part,violated a priororder,judgment,consent decree or stipulation of settlement entered in any court of this state or of the United States. Section 3. a. The duties to defend provided in this locallaw shallbe contingent upon (a)delivery to the Town attorney or, if none, to the Supervisor of the original or a copy of any summons,complaint,process,notice,demand or pleading within five days after the employee is served with such document and (b)the fiill cooperation of the employee in the defense of suchactionor proceeding and defense ofanyactionor 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 thattheTown provide forthe indenmi.U.wpSlithMocallaw September4,1998 3:55pm employee's defensepursuantto this local law,unless the employeeshall state in writing that a defense is not requested. b. Upon entry of a final judgment against the employee, or upon the settlement of the claim, the employee shall serve a copy of such judgment or settlement,personally or by certified or registered mail within thirty days of the date of entry or settlement, upon the Supervisor of the Town;and if the employee has complied with the provisions of this section as well as the other provisions of this local law and Section 28 of the Public Officers Law, the amount of such judgment or settlement shall be paid by the Town. Section 4. The benefits of this local law will inure only to employees as defined herein and shall not enlarge or diminish the rights of any other party nor shall any provisions of this local law be construed to affect, alter or repeal any provisions of the Worker's Compensation Law. Section 5. The provisions of this local law are not in any way intended to affect the obligation of any claimant to give notice to theTownunderSection50-e of the General Municipal Law, or any other provision of law. Section 6. All payments made under the terms of this local law, whetherfor insurance or otherwise shall be deemed to be for a public purpose and shall be audited and paid in the same manner as other public charges. Section7. The provisions of this locallaw shall not be construed to impair,alter,limit or modify the rightsand obligations of any insurerunderany policy of insurance. Section 8. As otherwise specifically provided in this local law, the provisions of this local law 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 theTownor any rightto defense provided forany governmental officer or employee by, in accordance with,orby reason of, anyother provision of stateor federal statutory or common law. Section 9. The benefits accorded to employees under this local law shall be in lieu of and taketheplaceof defense or indemnification protections accorded thesame employees by another enactment, except Public Officers Section 18, it being the intention that the indemnification and defenses provided pursuant to this local law shall be co-extensive with those provided under Section 18 of the Public OfficersLaw. Section 10. The provisionsof this local law shall apply to all actions and proceedings specified herein which have been commenced,instituted or brought on or after the effective date of this local law. indemnUl,wpSlithMocallawSeptember 4, 1998 3:55pm Section 11.If any provision of this local law or the application thereof to any person or circumstance be held unconstitutional or invalid in whole or in part by any court,such holding of unconstitutionality or invalidity shall in no way affect or impair any other provisions of this local law or the application of any suchprovisionto any otherperson or circumstance. B. This local law is adopted pursuant to the provisions of Section 18 of the Public Officers Law of the State of New York and is intended to qualify as a local law (i) conferring the benefits of Section 18 upon the Town's employees and (ii)agreeing to be held liable for the costs incurred underthe provisions of Section 18. C. This local law shall take effect 10 days after its adoption or upon filing in the office of the Secretary of State of the State of New York, whichever is later.