§ 6308 — Defense and indemnification of community college trustees, officers and employees

§ 6308. Defense and indemnification of community college trustees,\nofficers and employees. 1. As used in this section, the term "employee"\nshall mean any person holding a position by appointment or employment in\nthe service of a community college, whether or not compensated, or a\nvolunteer expressly authorized to participate in a community college\nsponsored volunteer program, but shall not include an independent\ncontractor. The term employee shall include a former employee, his\nestate or judicially appointed personal representative.\n 2. (a) Upon compliance by the employee with the provisions of\nsubdivision four of this section, the local sponsor of a community\ncollege shall provide for the defense of the employee in any civil\naction or proceeding in any state or federal court arising out of any\nalleged act or omission which occurred or is alleged in the complaint to\nhave occurred while the employee was acting within the scope of his\npublic employment or duties, or which is brought to enforce a provision\nof section nineteen hundred eighty-one or nineteen hundred eighty-three\nof title forty-two of the United States code and the act or omission\nunderlying the action occurred or is alleged in the complaint to have\noccurred while the employee was acting within the scope of his public\nemployment or duties. This duty to provide for a defense shall not arise\nwhere such civil action or proceeding is brought by or on behalf of the\nlocal sponsor.\n (b) Subject to the conditions set forth in paragraph (a) of this\nsubdivision, the employee shall be entitled to be represented by the\nlocal sponsor provided, however, that the employee shall be entitled to\nrepresentation by private counsel of his choice in any civil judicial\nproceeding whenever the local sponsor determines based upon its\ninvestigation and review of the facts and circumstances of the case that\nrepresentation by the local sponsor would be inappropriate, or whenever\na court of competent jurisdiction, upon appropriate motion or otherwise\nby a special proceeding, determines that a conflict of interest exists\nand that the employee is entitled to be represented by private counsel\nof his choice. The local sponsor shall notify the employee in writing of\nsuch determination that the employee is entitled to be represented by\nprivate counsel. The local sponsor may require, as a condition to\npayment of the fees and expenses of such representation, that\nappropriate groups of such employees be represented by the same counsel.\nThe local sponsor shall certify to its chief fiscal officer that the\nemployee or group of employees is entitled to representation by private\ncounsel under the provisions of this section. Reasonable attorneys' fees\nand litigation expenses shall be paid by the local sponsor to such\nprivate counsel from time to time during the pendency of the civil\naction or proceeding subject to certification that the employee is\nentitled to representation under the terms and conditions of this\nsection by the board of trustees of the community college at which such\nemployee is employed and upon the audit and warrant of the chief fiscal\nofficer of the sponsor. Any dispute with respect to representation of\nmultiple employees by a single counsel or the amount of litigation\nexpenses or the reasonableness of attorneys' fees shall be resolved by\nthe court upon motion or by way of a special proceeding.\n (c) Where the employee delivers process and a request for a defense to\nthe local sponsor as required by subdivision four of this section, the\nsponsor shall take the necessary steps including the retention of\nprivate counsel under the terms and conditions provided in paragraph (b)\nof this subdivision on behalf of the employee to avoid entry of a\ndefault judgment pending resolution of any question pertaining to the\nobligation to provide for a defense.\n 3. (a) The local sponsor shall indemnify and save harmless its\nemployees in the amount of any judgment obtained against such employees\nin any state or federal court, or in the amount of any settlement of a\nclaim, or shall pay such judgement or settlement; provided, that the act\nor omission from which such judgment or settlement arose occurred while\nthe employee was acting within the scope of his public employment or\nduties; the duty to indemnify and save harmless or pay prescribed by\nthis subdivision shall not arise where the injury or damage resulted\nfrom intentional wrongdoing or recklessness on the part of the employee.\n (b) An employee represented by the local sponsor or by private counsel\npursuant to this section shall cause to be submitted to the board of\ntrustees of the community college at which he is employed any proposed\nsettlement which may be subject to indemnification or payment by the\nlocal sponsor and if not inconsistent with the provisions of this\nsection such board of trustees of the community college at which he is\nemployed shall certify such settlement, and submit such settlement and\ncertification to the local sponsor. The local sponsor shall review such\nproposed settlement as to form and amount, and shall give its approval\nif in its judgment the settlement is in the best interest of the local\nsponsor and the community college. Nothing in this subdivision shall be\nconstrued to authorize the local sponsor to indemnify and save harmless\nan employee with respect to a settlement or pay any such settlement not\nso reviewed and approved.\n (c) Nothing in this subdivision shall authorize the local sponsor to\nindemnify and save harmless an employee with respect to punitive or\nexemplary damages, fines or penalties, or money recovered from an\nemployee pursuant to section fifty-one of the general municipal law;\nprovided, however, that the local sponsor shall indemnify and save\nharmless its employees in the amount of any costs, attorneys' fees,\ndamages, fines or penalties which may be imposed by reason of an\nadjudication that an employee, acting within the scope of his public\nemployment or duties, has, without willfulness or intent on his part,\nviolated a prior order, judgement, consent decree or stipulation of\nsettlement entered in any court of this state or of the United States.\n (d) Upon entry of a final judgment against the employee, or upon the\nsettlement of the claim, the employee shall cause to be served a copy of\nsuch judgment or settlement, personally or by certified or registered\nmail within thirty days of the date of entry or settlement, upon the\nboard of trustees of the community college at which he is employed; and\nif not inconsistent with the provisions of this section, such judgment\nor settlement shall be certified for payment by such board. If the local\nsponsor concurs in such certification, the judgment or settlement shall\nbe paid upon the audit and warrant of the chief fiscal officer of the\nlocal sponsor.\n 4. The duty to defend or indemnify and save harmless prescribed by\nthis section shall be conditioned upon (i) delivery to the local sponsor\nat its main business office by the employee of the original or a copy of\nany summons, complaint, process, notice, demand or pleading within five\ndays after he is served with such document, and (ii) the full\ncooperation of the employee in the defense of such action or proceeding\nand in defense of any action or proceeding against the community college\nor local sponsor based upon the same act or omission, and in the\nprosecution of any appeal. Such delivery shall be deemed a request by\nthe employee that the local sponsor provide for his defense pursuant to\nthis section.\n 5. The benefits of this section shall inure only to employees as\ndefined herein and shall not enlarge or diminish the rights of any other\nparty nor shall any provision of this section be construed to affect,\nalter or repeal any provision of the workers' compensation law.\n 6. The provisions of this section shall not in any way affect the\nobligation of any claimant to give notice to the local sponsor under any\nprovision of law.\n 7. The provisions of this section shall not be construed to impair,\nalter, limit or modify the rights and obligations of any insurer under\nany policy of insurance.\n 8. The provisions of this section shall apply to all actions and\nproceedings pending upon the effective date thereof or thereafter\ninstituted.\n 9. Except as otherwise specifically provided in this section, the\nprovisions of this section shall not be construed in any way to impair,\nalter, limit, modify, abrogate or restrict any immunity available to or\nconferred upon any unit, entity, officer or employee of the sponsor or\nany other level of government, or any right to defense and/or\nindemnification provided for any governmental officer or employee by, in\naccordance with, or by reason of, any other provision of state or\nfederal statutory or common law.\n 10. If any provision of this section or the application thereof to any\nperson or circumstance be held unconstitutional or invalid in whole or\nin part by any court of competent jurisdiction, such holding of\nunconstitutionality or invalidity shall in no way affect or impair any\nother provision of this section or the application of any such provision\nto any other person or circumstance.\n 11. In the case of colleges sponsored by community college regions,\nreferences in this section to the board of trustees of a community\ncollege shall mean the president of colleges sponsored by such regions.\n