B7: Defense and Indemnification of College Trustees, Officers, Employees and Volunteers (Civil Actions)

Responsibility for Maintenance: Office of the President

I. Policy Statement 

This policy sets forth protections available to Onondaga Community College trustees, officers, employees and volunteers against personal liability in the event they are sued individually, as a result of a cause of action which may arise by reason of an act or omission which occurs within the scope of their public employment or duties.

II. Reason for Policy  

New York State Education Law Section 6308 makes uniform the responsibility of community college sponsors operating under the program of the State University of New York to defend and indemnify college trustees, officers, employees and volunteers for financial losses and costs incurred in defending suits, claims and demands, and in satisfying judgments against them, resulting from acts or omissions committed in the discharge of their official duties. This policy provides a summary of the requirements of Section 6308 as applicable to trustees, officers, employees and volunteers of the College.

III. Applicability of the Policy  

All trustees, officers, employees and volunteers of the College should be familiar with this policy. This policy applies only to civil actions and proceedings as described below. Criminal actions and proceedings are subject to the College’s Policy on Reimbursement of Criminal Defense Costs Incurred by College Trustees, Officers, Employees and Volunteers.

IV. Related Documents  

• New York State Education Law Section 6308
• 42 United States Code Section 1983
• New York General Municipal Law Section 51
• Onondaga Community College Policy B8 Reimbursement of Criminal Defense Costs Incurred by College Trustees, Officers, Employees and Volunteers 
• Onondaga Community College Policy B6 Accepting Legal Papers and Responding To Legal Papers 
• Article XVII of the By-Laws of the Board of Trustees of Onondaga Community College

V. Contacts  

VI. Definitions 

VII. Procedures 

Defense  

Upon compliance by an Eligible Person with the provisions of this policy, the County of Onondaga (the “County”) will provide for the defense of the Eligible Person 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 Eligible Person was acting within the scope of his or her public employment or duties, or which is brought to enforce a provision of Section 1981 or 1983 of Title 42 of the United States Code (pertaining to alleged violation of federal civil rights) under circumstances where the act or omission underlying the action occurred or is alleged in the complaint to have occurred while the Eligible Person was acting within the scope of his or her public employment or duties. This right to a defense shall not arise where such civil action or proceeding is brought by or on behalf of the County.

Upon meeting the requirements of this policy, the Eligible Person shall be entitled to be represented by the County; provided, however, that the Eligible Person shall be entitled to representation by private counsel of his or her choice in any civil judicial proceeding whenever the County determines, based upon its investigation and review of the facts and circumstances of the case, that representation by the County 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 Eligible Person is entitled to be represented by private counsel of his or her choice. The County will notify the Eligible Person in writing of any such determination that the Eligible Person is entitled to be represented by private counsel. The County may require, as a condition to payment of the fees and expenses of such representation, that appropriate groups of Eligible Persons be represented by the same counsel.

The County shall certify to its chief fiscal officer in circumstances where an Eligible Person or a group of Eligible Persons is entitled to representation by private counsel under the provisions of this policy. Reasonable attorneys’ fees and litigation expenses shall be paid by the County to such private counsel from time to time during the pendency of the civil action or proceeding, subject to certification that the Eligible Person or group is entitled to representation under the terms and conditions of this policy by the College’s Board of Trustees and upon the audit and warrant of the chief fiscal officer of the County. Any dispute with respect to representation of multiple Eligible Persons 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.

Indemnification 

Subject to compliance by an Eligible Person with the provisions of this policy, the County shall indemnify and save harmless the Eligible Person in the amount of any judgment obtained against such Eligible Person in any state or federal court, or in the amount of any settlement of a claim, or shall pay such judgment or settlement; provided, that (i) the act or omission from which such judgment or settlement arose occurred while the Eligible Person was acting within the scope of his or her public employment or duties, and (ii) the duty to indemnify and save harmless or pay prescribed by this policy shall not arise where the injury or damage resulted from intentional wrongdoing or recklessness on the part of the Eligible Person. Further, nothing in this policy shall authorize the County to indemnify and save harmless an Eligible Person with respect to punitive or exemplary damages, fines or penalties, or money recovered from an Eligible Person pursuant to Section 51 of the New York State General Municipal Law (pertaining to prosecution of public officers for certain acts or omissions); provided, however, that the County shall indemnify and save harmless Eligible Persons in the amount of any costs, attorneys’ fees, damages, fines or penalties which may be imposed by reason of an adjudication that an Eligible Person, acting within the scope of his or her public employment or duties, has, without willfulness or intent on his or her part, violated a prior order, judgment, consent decree or stipulation of settlement entered in any court of this state or of the United States.

An Eligible Person represented by the County or by private counsel pursuant to this policy shall cause to be submitted to the College’s Board of Trustees any proposed settlement which may be subject to indemnification or payment by the County, and if not inconsistent with the provisions of this policy the Board shall certify the proposed settlement and submit such settlement and certification to the County. The County shall review the 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 County and the College. Nothing in this policy shall be construed to authorize the County to indemnify and save harmless an Eligible Person with respect to a settlement or pay any such settlement not so reviewed and approved.

Upon entry of a final judgment against the Eligible Person, or upon the settlement of the claim, the Eligible Person shall cause to be served a copy of such judgment or settlement, personally or by certified or registered mail, within 30 days of the date of entry or settlement, upon the College’s Board of Trustees, and if not inconsistent with the provisions of this policy such judgment or settlement shall be certified for payment by the Board. If the County concurs in such certification, the judgment or settlement shall be paid upon the audit and warrant of the chief fiscal officer of the County.

Conditions and Exclusions  

In addition to the conditions, limitations and exclusions set forth elsewhere in this policy, the duty to defend or indemnify and save harmless prescribed by this policy shall be conditioned upon (i) delivery to the County at its main business office by the Eligible Person of the original or a copy of any summons, complaint, process, notice, demand or pleading within five days after he or she is served with such document, and (ii) the full cooperation of the Eligible Person in the defense of such action or proceeding and in defense of any action or proceeding against the College or the County based upon the same act or omission, and in the prosecution of any appeal. Delivery pursuant to item (i) in the preceding sentence shall be deemed a request by the Eligible Person that the County provides for his or her defense pursuant to this policy, and the Eligible Person is not required to deliver a special request for defense. Where an Eligible Person delivers process and a request for a defense to the County as required by this policy, the County shall take the necessary steps, including the retention of private counsel under the terms and conditions provided above on behalf of the Eligible Person, to avoid entry of a default judgment pending resolution of any question pertaining to the obligation to provide for a defense.

The benefits of this policy shall inure only to Eligible Persons as defined herein and shall not enlarge or diminish the rights of any other party, nor shall any provision of this policy be construed to supersede any rights or requirements provided under the New York State Workers` Compensation Law.

This policy shall not in any way affect the obligation of any claimant to (i) give notice to the County under any provision of law or (ii) give notice to the College as required by the College’s Policy on Accepting Legal Papers and Responding To Legal Papers.

This policy shall not be construed to impair, alter, limit or modify the rights and obligations of any insurer under any policy of insurance.

This policy 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 County or any other level of government, or any right to defense and/or indemnification provided for any governmental officer or Eligible Person by, in accordance with, or by reason of, any other provision of state or federal statutory or common law.

This policy shall in all respects be subject and subordinate to the provisions of Section 6308 of the New York State Education Law. In the event of any conflict between this policy and Section 6308, Section 6308 shall control. If any provision of this policy 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 policy or the application of any such provision to any other person or circumstance.

Approved by OCC Board of Trustees April 3, 2006