[HISTORY: Adopted by the Mayor and Council of the Borough of Maywood 5-22-2002
by Ord. No. 7-02. Amendments noted where applicable.]
The following terms when used in this chapter shall be defined as set
forth in this section. Any term that is not defined in this chapter shall
be defined in accordance with the provisions of the New Jersey Tort Claims
Act, N.J.S.A. 59:1-1 et seq., and the cases decided thereunder.
The Attorney from the Borough of Maywood.
All appointed or elected employees, agents, officers, and volunteers
of the Borough of Maywood.
Any civil or administrative action that is pending in:
The New Jersey Supreme, Superior or Tax Courts;
The courts of the United States;
Any other court of competent jurisdiction; and
Any state or federal administrative body or agency and that is arising
out of and directly related to a public official's lawful exercise of
his or her authority or duty in the furtherance of the public official's
authority or duty.
Any written or oral expression of the intent of any person to prosecute
a criminal offense, institute a criminal proceeding, or file a civil suit
against any Borough official, either in the Borough official's official
or individual capacity, for acts, omissions, or events arising out of, or
connected, directly or indirectly with, the performance of the Borough official's
duties.
Any offense that is defined as a crime in the United States or New
Jersey Criminal Codes, as well as all quasicriminal offenses whether defined
by federal or state laws or regulations or any county or municipal ordinance.
Any criminal, quasicriminal or other law enforcement proceeding that
is pending in any state or federal court, regarding a criminal offense arising
out of and directly related to the public official's lawful exercise
of his or her authority or duty in the furtherance of the public official's
authority or duty.
The Mayor and Council of the Borough of Maywood.
As to civil suits in which a Borough official is named as a party, the
borough shall defend and/or provide a defense for the Borough official, either
through the Borough Attorney or his or her designee, through legal counsel
provided by the Borough's insurance carrier or by permitting the Borough
official to retain legal counsel of the Borough official's choosing.
If the Borough official is authorized by the governing body to retain legal
counsel, the Borough will pay the reasonable cost of the representation, including
investigation, costs, and reasonable legal fees, as further defined in this
chapter.
As to civil suits in which a Borough official is a party, the Borough
shall indemnify and hold harmless the Borough official for all damage awards,
verdicts, and any other forms of civil penalty or judgement, unless it is
determined that the Borough should not be responsible on account of the factors
set forth in this chapter or any other applicable state law.
The Borough will not provide a defense for Borough officials who are
charged with criminal offenses. The governing body may, however, authorize
the Borough to reimburse the Borough official for the reasonable cost of the
defense of a criminal proceeding, including investigation, costs, and reasonable
legal fees, as further defined in this ordinance, provided that the criminal
proceeding is dismissed or is finally determined in favor of the Borough official.
The governing body, with the advice of the Borough Attorney, shall determine
what costs, expenses and legal fees are reasonable under the facts and circumstances
of each case in which a Borough official is a party. For purposes of this
indemnification policy, the Borough only will pay or indemnify the Borough
official for legal fees that are based on reasonable hourly rate, and will
not pay retainers to attorneys or investigators. The governing body will determine,
on a case-by-case basis, the reasonable hourly rate to be paid to the legal
counsel who is retained by a Borough official as authorized by this chapter.
Any Borough official who receives notice of a claim or is named as a
party in any civil suit or criminal proceeding, either in his or her official
capacity or in an individual capacity, for events arising out of or connected
directly or indirectly with the performance of his or her duty as a Borough
official, shall promptly advise the governing body of the claim or that action
has been commenced, and shall supply to the governing body a copy of any and
all notices and pleadings pertaining to the matter. The Borough official shall
thereafter cooperate with the appropriate Borough agents, attorneys, servants,
and employees in effectuating the provisions of this chapter.
The Borough will not provide a Borough official with indemnification
for damages or claims arising out of the following instances:
A.
If the act or omission of the Borough official constitutes a criminal offense, actual fraud, actual malice, willful misconduct, or an intentional or wrongful act or omission, subject to the provisions of § 96-9.
B.
If the act or omission of the Borough official is outside
the scope of the Borough official's employment, duties or official capacity.
C.
If the act or omission of the Borough official does not
arise out of and is not directly related to the Borough official's lawful
exercise of his or her authority or duty in the furtherance of the Borough
official's authority or duty.
D.
If the action or proceeding has been brought by the Borough
itself against the Borough official.
E.
If the Borough official has failed to substantially cooperate
with the Borough and its agents, servants, attorneys and employees in connection
with the matter.
F.
If it is not deemed appropriate by the governing body
pursuant to the provisions of the New Jersey Tort Claims Act, N.J.S.A. 59:10-1,
et. seq.
If, pursuant to the terms of this chapter or any other applicable law,
the Borough has paid any legal fees, defense costs or damages on account of
a Borough official and it is later determined that the payment of same was
improper or was disallowed under the terms of this chapter or any law, then
the Borough official shall, within 30 days of the receipt of the Borough's
demand, reimburse to the Borough the full amount of the improper or disallowed
payments made by the Borough.
The Borough shall not reimburse any Borough official for any punitive
or exemplary damages or any damages resulting from the commission of a crime
by any Borough official. The Borough may, however, indemnify a Borough official
for exemplary or punitive damages if, in the judgment of the governing body,
the acts committed by the Borough official upon which these damages are based
did not constitute actual fraud, actual malice, willful misconduct or an intentional
wrong.
When the Borough provides a defense of a Borough official pursuant to
this chapter, the Borough may assume exclusive control of the representation
of the Borough official to the extent permitted by law. If the Borough permits
the Borough official to retain legal counsel, the governing body may limit
the extent of the participation of or the payment to the legal counsel if,
in the opinion of the governing body, this limitation is reasonable under
the circumstances and will not prejudice the Borough official.
Nothing contained in this chapter shall prevent the Borough from bifurcating
its treatment as of any claim against any Borough official, both as to whether
and how it will provide a defense and/or indemnification. Accordingly, the
Borough may provide a defense and/or indemnification for some allegations
against a Borough official, but not as to others, and may provide the defense
in different forms as to different allegations.
This chapter is not intended to conflict with any of the provisions
of the New Jersey statutes that require the Borough to provide for the defense
and indemnification of any public officials specified therein, including but
not limited to police officers, firefighters and the Municipal Clerk. If any
of the provisions of this chapter are in conflict with these statutes, including
but not limited to those that apply to police officers (N.J.S.A. 40A: 14-155),
firefighters (N.J.S.A. 40A: 14-28), and the Municipal Clerk (N.J.S.A. 40A:9-134.1),
the provisions of applicable New Jersey statutes, as interpreted by the courts
of this state, shall prevail over the terms and conditions of this chapter,
but only to the extent of any inconsistency between the terms of the applicable
statute and this chapter.
