HomeMy WebLinkAbout1983 LL 2 - Legal Defense of Town Officers & Employees (iIleasL Use this Form for Filing your Local Law with the Secretary of State)
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MOM
Ismof .............................................................................
Town .........
Local Law 190....................2
......... of the year 39 M.
A law LOCALLAWQ7QR THE LEGA.— .................................
................................................ ........... "'";;Q .....
(I.. i&i......................
IDEMNIFICATION OF TOWN OF IT CA OFFICERS AND EMPLOYEES. .
Beil,enzcred by the ........................own-Board of the
...............»..............................,.......,.
..............***..........*......
of.... ........................ .........11�mA........... .......... ..................... ....... ..... as follows;
SECTION 1. PURPOSE OF LAW
a. The State of New York has enacted Section 18 of the Public
Offiers Law to authorize municipalities to provide for the defense
and indemnification of municipal officers and employees, as they
are defined in such law. This Local Law is adopted for the purpose
of providing defense and indemnification for such employees and
for persons who are otherwise officers and employees of- the Town
within the meaning of the law. The Town in the due exercise of its
powers, has enacted this law which varies the provisions of such
Section 18 in order to provide such defense and indemnification
in a manner consistent with the Town's resources, the insurance
coverage available, and the number, functions and operations of
employees as defined in this law.
b. It is the Town's policy to (i) provide a degree of pro-
Lection to the persons covered by this law without unduly
exposing the Town to obligations to pay or indemnify in all cases
whenever a municipal employee is sued, as for example, in cases
V.-ien nio itasurance is provided; and (ii) to maintain the Town's
fiscal soundness and to insure the ability of the Town to provide
municipal services at reasonable tax rates. Accordingly, this
Local Lam contains provisions which are in addition to those of
Section IS and which vary some of the provisions in Section 18.
S�'�ZTION 2 DEFINITIONS
o, The term ''Town'' shall mean the Town of Ithaca.
add;,tjoO
"Ott ach sheets of the same size as thisand numb�cr,:.,2Sj!n7j
Page 1.
b. The term "insurance carrier" shall mean any insurance
company which provides coverage for any liability which the
Town, may incur under this law and which undertakes or is re-
quired to undertake the defense of any employee as herein de-
fined,
c. As used in this Local Law, unless the context otherwise
requires, the term "employees" shall mean any person holding a
position by election, appointment or employment in the service
of the Town, whether or not compensated; without limiting the
generality of the foregoing, the term shall also* mean any
employee of the To or of any of its boards or agencies, or
any officer of the Town, or his or her deputy, any To Council-
man, a commissioner of the Town, or his or her deputy, or any
member of any public board of the Town or any agency or commis-
sion of the To The term "employee" shall also include (i)
any 'volunteer acting in behalf of the Town who has been duly
and specifically authorized by the To to participate in a
volunteer program sponsored by the Town, and (ii) any former
employee or his estate or judically appointed representative,
(iii) the Town Attorney or any duly licensed attorney .at lata car law
firm acting generally as attorney(s) for the Town in substan-
tially all matters and who is not specifically employed for the
defense of any such employee. Any other independent contractor
shall. not be deemed to be an employee of the Town for purposes
of this law.
SECTION 3. SCOPE OF DEFENSE AND INDFMNIFICATION
e_ Subject to the provisions of this law and -upon com-
pliance by the employee with the provisions of this Local Law,
the Town shall provide for the legal defense of the employee in
any civil action or proceeding in any state or federal court. or
before any agency of the state or the United States, or of any
political subdivision of the state, which arises out of any act
or failure to act alleged to have occurred while the employee.,
acted, or in good faith purported to act, within the scope of
his publ.-ic employment or duties as an employee of the Town.
Such legal defense shall- not be provided where any action or
procee,43.ng is brought by or on behalf of the Town. Except as
otherwise provided by Public Officers Law, Section 18, or this
Local Law, the duty of the Town to indemnify or save harmless
an employee shall not arise where the injury or damage resulted
from intentional wrongdoing or recklessness on the part of the
employee in .the judgment of the To Board.
b. The Town's duty to defend or indemnify shall be further
conditioned upon (i) the delivery by the employee to the Town
Supervisor, with a copy to the To clerk, of a written request
to provide for his defense; a copy of any summons, complaint,
notice, demand, pleading or other process or any claim or notice
of claim or any other demand or relevant document shall be
delivered immediately upon receipt or service to the Town Clerk
but not later than 48 hours after service or receipt of any
process or other document, and (ii) the full cooperation of the
employee in any action or proceeding against the employee or the
Town.,
C. (1) Subject to the conditions set forth in this law,
......... the employee shall be entitled to be represented by the Town s
Attorney except that the attorney shall be the zatt:orney desig-
nated by an insurance carrier, which provides coverage and
undertakes V-he defense of any such action or proceedings if
such carrier requires that counsel normally retained by such
carrier shall conduct the defense; in such case, the attorney's
la
Nees and other legal expenses shall be paid by, the carrier.
Furthermore, if the Town or the Town's attorney determines that
he or any other attorney conducting the defense may have a con-
flict of interest, which may affect such defense, he may rec-
ommend that other counsel be retained for the defense of the
employee subject to the approval of the'Town Supervisor or the
Town Board. A reasonable estimate or fixed fee, as the case
may be, for the services of such other counsel, shall be agreed
upon, as soon as expedient, and the To shall pay such legal
costs.
c. (2) If the employee has reasonable grounds to 'believe
that the attorney defending the employee may have a conflict
of interest which would materially or significantly affect such
defense, the Town employee. may commence a proceeding in the
State Supreme Court by notice of motion or order to show cause
for the Court to review and render an appropriate decision.
C. (3) Upon recommendation of the Town's attorney, the
Town Board may require, as a condition to the defense and the
payment of expenses or other liability incurred under this law,
that multiple employees or appropriate groups of employees be
represented by the same counsel.
SECTION 4. PROCEDURES
a. The Town, at its option, may refuse, without arty
liability to an employee, to discharge any duty Lt may have to
defend and indemnify an employee under this law unless: (1)
the employee complies with the provisions of this law including
those et forth in Section 3.b. , above and (2) the To Board,
under the provisions of this Local Law, determines to provide
for the legal defense and indemnification of the employee. The
delivery of documents (described in Section 3.a,, ,) to the Town
.......... by the employee shall be deemed to be, a request by the employee
that the Town provide for his or her defense pursuant to this
law unless the employee shall. state in writing that a defense
is not requested.
b. The To Clerk or the To Supervisor, with the
assistance of the Town's attorney, shall immediately atte+r, to
confirm the date(s) on which any such documents were deliv.,,xed
to or, received by the employee and the employee must sign an.
affidavit setting forth the date(s) , time and place of such
receipt or service, the manner in which such service was made,
the name, if' known, of the party making such se-cvice and such
other information as the Town's attorney may require. The Town
Clerk shall enter all pertinent information in a book or journal
kept by the Clerk for the filing of notices of claim against the
Town. In addition, the Town Clerk shall immediately establish a
separate file for each separate claim, action or proceeding in
which shall be kept a copy of all docuffients, notes, memoranda,
correspondence and other items relating to the defense of the
employee as may be received by the Town.
C. The Town Clerk shall also establish (i) a general. file
entitled "Municipal Liability to Defend and Indemnify Town
Employees" in which shall. be kept a copy of this law and memoran-
da, legal opinions and other matters relating to thLs law and
(ii) a file, in which shall be filed additional copies of any
policy and other matters and correspondence relating
to insurance coverage. Notice of delivery of documents (Section
3.b. ,) and copies thereof will be delivered to the Town's
attorney and to any insurance carrier, or its local agent, and
lb
to counsel other than the Town's Attorney who may have been
retained to defend the employee, all in accordance with such
regulations or directions as the Town attorney and with the
Town Clerk may prepare. M
d. Notwithstanding any other provision of this law to
the contrary, the Town Board, at its option, may conduct such
additional investigation, if any is required, with the assistance
of the Town's attorney, to determine whether or not the Town
shall undertake the defense and indemnification of the employee.
The Town Board shall inquire into such material facts as the
good faith and conduct of the employee, the employee's prior
employment history, and whether or not the employee was acting
or purported to act within the scope of his duties and any other
facts which the Town shall consider relevant. Any determination
by the Town Board not to defend or indemnify an employee shall
be made as expeditiously as possible after the delivery of any
legal process to the Town Cleric or Town Supervisor and within
such time period as the Town attorney shall advise. The Clerk
or Town Supervisor shall immediately notify the employee in
writing following any determination or decision trade by the Town
Board. Nevertheless, the Town shall take the necessary steps
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.
SECTION 5. MISCELLANEOUS
a. Benefits of this Local Law will inure only to an
employee as defined herein and shall not enlarge or diminish
the rights of any other party nor ,hall any provision of this
Local Law be construed to affect, alter or repeal any provisions
of the Workmen's Compensation .Laws.
b. Benefits of this Local Law shall be extended to an
employee of a negotiating unit for which an agreement has been
negotiated pursuant to Civil Service Law, only if such agreement
expressly so provides,
C, No provision in this law shall affect t:lae obligation
of any claimant to give notice to the Town of the assertion of
any claim under any provision of any applicable law.
SECTION 6. EE, t1I. 11TENT € F INSURANCE CUVERAGE
Notwithstanding any other provision of this 'law, the Town shall
not be obligated to defend or indemnify except at :its option an
employee under the provisions of this lair unless the liability
of the, Town for such defense and indemnification is covered by
an insurance policy and unless an insurance care:Ler is required
to and does undertake the defense of any action or proceeding
brought agei.nst the employee. The Town shall. not be obligated
to pay, except at: its option, the amount of any judgrtryent in
excess of the limits set- forth in any ,,uch insurance policy.
The exercise= of the Town's discretion tinder this section shall
be solely in the discretion of the Town. Board and. shall. not be
subject to court review.
I
SECTION 7 o- OBI.I :,ATION OF INST..Ti .NCEa COPIP NY
rR.. `'E'he provisions of this law sPa.al.l.. not :Lary anyway iL I aisr
limit or modify the obligation igat:ion of aray insa.i-rance carrier to
provide for the defense and. indemn. .ficat,ion of e.:an. employee under
lc
the terms of its insurance policy with the Town. in no event J
shall the insurance carrier be entitled to refuse to defend or �; . .
indemnify the employee because of the failure of the Town Board
to make a determination as provided for in this law or the �
failure of the Town Board or the Town Clerk or any other Town.
officer or any employee, including an employee to comply with
any other provisions of this lawn
rr
SECTION S. DEFENSE: AND INDEMMIFICATION SUBJECT TO � ISCRE"TION
._ OP"MUT C}A ".�..�._.._..�..._ .__ _
a. If any action or proceeding is settled and such
F'>ettlement is conditioned upon the payment of a suin of money
,�y the employee, the duty of the Town to indemnify and save and
%old
harmless under this law shall be further conditioned upon
approval. of the amount and other terms of the settlement by the
".own Board.
ba The Town shall not be required to indemnify and save
harmless an employee with respect to punitive or exemplary
damages, fines, penalties or for money recovered from an employee*
pursuant to than provisions of Section 1. of the General
Municipal Law,
C, The ob igation of the Tow to -indemnify and hold
harmless is subject. to the limitations zind provisions contained
in all Lhe provisions of this law and. lhall be further subect: 4 ;
to compliance by the employee with the provisi.oaa.., of this law.
SECTION 9. COVERAGE
The provisions of this law ,halt, at the option of ffie Town.
Board, apply to the defense, or indemnification of any employee
in any action or proceeding ;-alleging a cause of action which
arose or was coaxmenced prior to the effective date o:l" this taw.
1
w.
The invalidity or unconstitutionality of a provision of this
law shall not imrair or affect the validity of any other sa;
provision of this lace or the application of any such provision
to any other person or circumstance. 4;
iNrlq
SECTION ti. RELAT ION TO CB'L`HER LAWS
Except as otherwise provided by law, the provisions of this law
shall nox7 be construed in any way to constitute awaiver by, or
to limit, alter, impair or abrogate any defense, rights,
benefits, privileges or iminuni.ties to liability, svailable to or �V
conferred upon the. Tom as a. public entity or any of its 'units,
agencies, off .c.^rs or employees in accordance with any provision,
of any AaLutory or c.OMMon law.
1d.
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A,
(Complete the certification in the paragraph Which applies to the filing of this local la%v and strikes out the
matter therein Which is not applicable.)
1, (final aI herebydoption
by local legislative
cY Y.)
certify that the local law annexed hereto designated as local law No. ........ ........of I9.$1
1.,'aI lane
Town Board
Of ene of,.................................
...Was duly passed by the..............................................-...........,...............,......
N1�C34Yn (Name of Legislative Eio+lY)
0
n,..•..,.•,,. "eaxt ?...7,.q......19....V in accordance With the applicable provisions of lave®
2. (Passage by local legislative body with approval or no disapproval by Elective Chief Executive Officer,*
or repassage after•disaproval.)
I hereby certify that the local law annexed hereto,designated as local law No....................of19........
County
City �,
..,.was dui passed b vie..............
of the of.................:............... y P y
'af
Town .,,(d~tanxe of Legislative S3ady)
Village not disapproved
19...,.... and was approved by the ...,...,etiv....hief.E...cutt.,,.offi.........
' j;leetive chief 3•:zecnEeve pffie,�.:
repassed after disapproval
and was deemed duly adopted on.......................................................19-._.... , its accordance With the,, applicable
provisions of law„
3. (Final adoption by referendum.)
I hereby certify that the local l.aw annexed hereto,de> l;iiaited a..:;leacal law No. ®......,._. of 19.---••-
County
City .Was duly passed by the.—_..............................................................
Town
of the ., of______..................... y
oW n (iV;emc of't,vgistaeivc Body)
Vitlaf„e not disapproved
19..., and Was
approved by the..................................................... .......
i on..,.,.....,.............................. [;teckivat C:h%c$$i;xececti'vr:of U.-
repassed after disapproval
on_ ........ 19... fucla local law was sailnnitted to the people by reasok of ae
mandatory
referendum, received the affirmative vote, of a m
oajority of the qualified electors voting
perrnis;siee
general
thereon at the special election held on......................................................19-,,—_a in accordance With the appli-
annual
cable provis2ons of law,
4. (SAject to permissive refe>rendurn,and final adoption because no valid petition filed requesting
reft-rendum
I b.) y certify that the local law annexed hereto,designated as local law No................. ofl.')--...-
County
City C av>aas duly passed b Ylie... esra.
of tlr4' f}P•.,•,...,.....,. .". �'p� .... .(F6ckcnc o$E.e.yestmtdvc S3edY)
1lt4Wp1
'village not disapproved
19..„ alae& was approved by th oe.
.-........,..., '
repassed after di sapprova
Such lr)caal la%v being subke(at to apermissive referenduri and.n,
E { valid 1...Cition requesting such ref(.rendum b aving been filed, :Fled local law was dCtL'fidted duly adopted on
1.9....,,,., in accordance With the npplic:ible provisions of law.
1.;
tecrfive t"irie` ace euIf Ve.Officer rrrw ii or iz aludev pie rtizrrf chi edi4ivd.�ffarca°esf a�a,dar4iiva" c it r„„tkari oo i aoiuuity ev�r9c Grasvir
v
or,if t rare be'n rase:,the ch,riraaasm of$lead county as'g;drat. e t�md els ilei s of c it, or vnytlge oy a s. k�aetavir�Gr«r r>a ar tc uv�gs,
%vlacae sharia ruff"wirer is vested wifli avoir err to vis;ove or-to 1-111 Bra A's ox oae$axa,atict>.
Page 2
S< (City local law concernirn,Charter recision proposed by petition.)
I Ile reby certify that the local I a%vatillexed hereto,designated as local law No.....................Of 19........
of the City of.
...having been submitted to referendum pursuant to the
§..3 6 ........ .................. ...... the affirmative vote of a majority
previsions of of the
,;unicipal llime Rule Law,and having received
§ 37 1 special
of the qualified electors of such city voting thereon at tha.general election held on................................
....... ...became operative.
6. (County local law concerning adoption of Charter.)
I hereby certify that the local law annexed hereto,designated as Local Law No. ....of 19.. of the
County of ......................................... State of New York, having been submitted to the Electors at the
to subdivisions 5 and 7 of Section 33 of the Muni-
General Election of November........... 19..... pursuant
cipal Home Rule U&w,and having received the affirmative vote of a majority of the qualified electors of the
cities of said county as a unit and of a majority of the qualified electors of the towns of said county
considered as a unit voting at said general election,became operative.
(it any other authorized form of final adoption has been followed, please provide an appropriate
certification.)
I further certify that I have compared the preceding local law with the original on file in this office
and that the same is a correct transcript therefrom and of the whole of such original local law, and was
finally adopted in the manner indicated in paragraph............................ above.
Date. February 8, 1983
fYr
(CorLific,ation to be executed by County Attorney, Corporation (,ounsel, Town Attorney,Village Attorney
or othar authorized Attorney of locality®j
&FATE OF NEW YORK
COUNTY OF-.......
the foregain, i0cal 1`1av ��O`�"ns the correc;t text and diatall
1, the undersigned, hereby certify that 1�1
Aw 'Drlexed her('tQ-
proper proceedings have been had or taken for the enactment of the local I
'A
rn sort T
V. Buyoucos
.
Town.A r
Tide
Date: February 8, 1983 rIttiaca
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