2023 New York Laws › EDN - Education › Title 7 - State and City Colleges and Institutions-Cornell University › Article 126 - Community Colleges and State-Aided Four-Year Colleges › 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.