[Adopted 6-4-2008 by Ord. No. 10-2008]
As used in this article, the following terms
shall have the meanings indicated:
The means by which a public employee may respond to any suit,
allegation, or cause of action. The Township of Pemberton shall provide
for the defense of any action, suit or proceeding, whether civil,
criminal, administrative, or investigative, including a cross action,
counterclaim, or cross complaint against any public employee because
of any act or omission of such public employee in the scope of his
or her employment, and shall defray all costs of defending such action,
including reasonable counsel fees and expenses, together with costs
of appeal, if any, excepting actions, suits or proceedings brought
by the Township of Pemberton against such public employee. Expressly
exempted from this chapter are any charges, allegations, or actions
of any nature asserted by the Township of Pemberton against its own
public employee.
To secure against future loss or damage, or to provide compensation
for or repair loss or damage already suffered; to insure; to save
harmless.
Any employee of the Township of Pemberton, any elected or
appointed official, or any officer, employee, or servant, whether
or not compensated, who is authorized to perform any act or service
for the Township of Pemberton. The term "public employee" shall also
include persons formerly holding office or employment, provided that
the events giving rise to a cause of action or claim hereunder conform
to the requirements herein established.
Subject to the limitations set forth in the
subsequent sections of this chapter, whenever any civil action has
been, or shall be, brought against any public employee holding or
formerly holding any office, position, or employment with the Township
of Pemberton, for any action or omission arising out of or in the
course of the performance of the duties of such office, position,
or employment, the Township shall defray all costs of defending such
action, including reasonable counsel fees and expenses, together with
costs of appeal, if any, and shall save harmless and protect such
persons from any financial loss resulting from the litigation. The
Township Attorney, or another attorney selected by the Mayor, with
the advice and consent of the Township Council, shall represent the
Township official or employee.
The Township shall not defray the costs of defending
any criminal action against any public employee, except as may be
authorized by state statute or other municipal ordinance or resolution
of the Township of Pemberton, and in those circumstances, the responsibility
for defraying the costs of defending such public employee shall be
applicable only when such criminal proceedings shall have been dismissed
or result in a final disposition in favor of the public employee.
However, should the Township determine that there is good cause, arising
out of the incident or related incidents of the criminal prosecution,
to dismiss the public employee, the Township will not reimburse the
public employee for legal defense and/or the costs of defending the
suit, even though criminal proceedings against the public employee
may be dismissed or the public employee is found not guilty.
A.
The obligation of the Township of Pemberton to defend
and indemnify its public employees for acts or omissions arising out
of, or during the course of, the performance of the duties of said
public employee shall be limited to those circumstances under which
the Township itself would be liable for the acts of its public employees
under the doctrine of respondent superior, except that the Township
shall defend any claims or causes of action for alleged violations
of a person's federal civil rights by a public employee, provided
that the Township shall not have concluded that such act or omission
giving rise to a claim of a federal civil rights violation was outside
the scope of the responsibilities of said public employee.
B.
The Township shall not defend and save harmless any
public employee committing an intentional or willful act or willful
omission arising out of, or in the course of, the performance of the
duties of such office, position, or employment.
C.
The Township shall not be responsible for the defense
or indemnification of any public employee of the Township when the
Township has determined that:
(1)
The act or omission was not within the scope of employment.
(2)
The act or failure to act was because of actual fraud,
willful misconduct, or actual malice.
(3)
The defense of the action or proceeding would create
a conflict of interest between the Township and the public employee.
(4)
The public employee failed to deliver to the Township
Administrator, within 10 calendar days after the time he or she is
served, the original or copy of any summons, complaint, process, notice,
demand, or pleading.
(5)
The public employee has failed to cooperate fully
with the defense.
Whenever the Township provides any defense required
of it under this chapter, the Township, through counsel, may assume
exclusive control over the representation of the public employee,
and such employee shall cooperate fully with the defense.
A.
In any case where the Township is required to provide
a defense under this chapter, the Township shall pay or shall reimburse
the public employee for:
(1)
Any bona fide settlement agreements entered into by
the public employee which is approved by the Mayor and the Township
Council.
(2)
Any judgments entered against the public employee
which relate to any act or omission of such public employee in the
scope of his or her employment.
(3)
If the Township has failed to provide such required
defense, all costs of defending the action, including reasonable counsel
fees and expenses, together with costs of any appeal.
B.
In addition, in any case where the Township would
be required to provide a defense under this chapter except for the
fact that such defense is provided for by insurance, the Township
shall provide indemnification as aforesaid, but only to the extent
not covered by insurance.
Nothing in this chapter shall authorize the
Township to pay for punitive or exemplary damages or damages resulting
from the commission of a crime.
