N.Y. Education Law § 6308: Defense and indemnification of community college trustees, officers and employees

§ 6308. Defense and indemnification of community college trustees,

officers and employees. 1. As used in this section, the term "employee"

shall mean any person holding a position by appointment or employment in

the service of a community college, whether or not compensated, or a

volunteer expressly authorized to participate in a community college

sponsored volunteer program, but shall not include an independent

contractor. The term employee shall include a former employee, his

estate or judicially appointed personal representative.

2. (a) Upon compliance by the employee with the provisions of

subdivision four of this section, the local sponsor of a community

college 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, or which is brought to enforce a provision

of section nineteen hundred eighty-one or nineteen hundred eighty-three

of title forty-two of the United States code and the act or omission

underlying the action occurred or is alleged in the complaint to have

occurred while the employee was acting within the scope of his public

employment or duties. This duty to provide for a defense shall not arise

where such civil action or proceeding is brought by or on behalf of the

local sponsor.

(b) Subject to the conditions set forth in paragraph (a) of this

subdivision, the employee shall be entitled to be represented by the

local sponsor provided, however, that the employee shall be entitled to

representation by private counsel of his choice in any civil judicial

proceeding whenever the local sponsor determines based upon its

investigation and review of the facts and circumstances of the case that

representation by the local sponsor would be inappropriate, or whenever

a court of competent jurisdiction, upon appropriate motion or otherwise

by a special proceeding, determines that a conflict of interest exists

and that the employee is entitled to be represented by private counsel

of his choice. The local sponsor shall notify the employee in writing of

such determination that the employee is entitled to be represented by

private counsel. The local sponsor may require, as a condition to

payment of the fees and expenses of such representation, that

appropriate groups of such employees be represented by the same counsel.

The local sponsor shall certify to its chief fiscal officer that the

employee or group of employees is entitled to representation by private

counsel under the provisions of this section. Reasonable attorneys' fees

and litigation expenses shall be paid by the local sponsor to such

private counsel from time to time during the pendency of the civil

action or proceeding subject to certification that the employee is

entitled to representation under the terms and conditions of this

section by the board of trustees of the community college at which such

employee is employed and upon the audit and warrant of the chief fiscal

officer of the sponsor. Any dispute with respect to representation of

multiple employees by a single counsel or the amount of litigation

expenses or the reasonableness of attorneys' fees shall be resolved by

the court upon motion or by way of a special proceeding.

(c) Where the employee delivers process and a request for a defense to

the local sponsor as required by subdivision four of this section, the

sponsor shall take the necessary steps including the retention of

private counsel under the terms and conditions provided in paragraph (b)

of this subdivision 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.

3. (a) The local sponsor 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, or shall pay such judgement or settlement; 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 or pay prescribed by

this subdivision shall not arise where the injury or damage resulted

from intentional wrongdoing or recklessness on the part of the employee.

(b) An employee represented by the local sponsor or by private counsel

pursuant to this section shall cause to be submitted to the board of

trustees of the community college at which he is employed any proposed

settlement which may be subject to indemnification or payment by the

local sponsor and if not inconsistent with the provisions of this

section such board of trustees of the community college at which he is

employed shall certify such settlement, and submit such settlement and

certification to the local sponsor. The local sponsor shall review such

proposed settlement as to form and amount, and shall give its approval

if in its judgment the settlement is in the best interest of the local

sponsor and the community college. Nothing in this subdivision shall be

construed to authorize the local sponsor to indemnify and save harmless

an employee with respect to a settlement or pay any such settlement not

so reviewed and approved.

(c) Nothing in this subdivision shall authorize the local sponsor to

indemnify and save harmless an employee with respect to punitive or

exemplary damages, fines or penalties, or money recovered from an

employee pursuant to section fifty-one of the general municipal law;

provided, however, that the local sponsor 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 that an employee, acting within the scope of his public

employment or duties, has, without willfulness or intent on his part,

violated a prior order, judgement, consent decree or stipulation of

settlement entered in any court of this state or of the United States.

(d) Upon entry of a final judgment against the employee, or upon the

settlement of the claim, the employee shall cause to be served 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

board of trustees of the community college at which he is employed; and

if not inconsistent with the provisions of this section, such judgment

or settlement shall be certified for payment by such board. If the local

sponsor concurs in such certification, the judgment or settlement shall

be paid upon the audit and warrant of the chief fiscal officer of the

local sponsor.

4. The duty to defend or indemnify and save harmless prescribed by

this section shall be conditioned upon (i) delivery to the local sponsor

at its main business office by the employee of the original or a copy of

any summons, complaint, process, notice, demand or pleading within five

days after he is served with such document, and (ii) the full

cooperation of the employee in the defense of such action or proceeding

and in defense of any action or proceeding against the community college

or local sponsor based upon the same act or omission, and in the

prosecution of any appeal. Such delivery shall be deemed a request by

the employee that the local sponsor provide for his defense pursuant to

this section.

5. The benefits of this section shall 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 section be construed to affect,

alter or repeal any provision of the workers' compensation law.

6. The provisions of this section shall not in any way affect the

obligation of any claimant to give notice to the local sponsor under any

provision of law.

7. The provisions of this section shall not be construed to impair,

alter, limit or modify the rights and obligations of any insurer under

any policy of insurance.

8. The provisions of this section shall apply to all actions and

proceedings pending upon the effective date thereof or thereafter

instituted.

9. Except as otherwise specifically provided in this section, the

provisions of this section 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 sponsor 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 state or

federal statutory or common law.

10. If any provision of this section or the application thereof to any

person or circumstance be held unconstitutional or invalid in whole or

in part by any court of competent jurisdiction, such holding of

unconstitutionality or invalidity shall in no way affect or impair any

other provision of this section or the application of any such provision

to any other person or circumstance.

11. In the case of colleges sponsored by community college regions,

references in this section to the board of trustees of a community

college shall mean the president of colleges sponsored by such regions.