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.
Last modified: February 3, 2019