[HISTORY: Adopted by the Borough Council
of the Borough of Seaside Heights 2-19-1997 by Ord. No. 97-1. Amendments noted where applicable.]
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 person (hereinafter referred
to as "employee") holding or formerly holding any office, position
or employment within the Borough of Seaside Heights, including but
not limited to members of the Land Use Board and/or Board of Adjustment
and/or any other municipal board, body, committee, agency or commission
within the Borough of Seaside Heights 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 borough 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 Borough Attorney or another attorney selected by the Mayor with
the advice and consent of the Borough Council shall represent the
borough official or employee.
The borough shall not defray the costs of defending
any criminal action against any municipal employee except as may be
authorized by state statute or other municipal ordinance or resolution
of the Borough of Seaside Heights, and, in those circumstances, the
responsibility for defraying the costs of defending such employee
shall be applicable only when such criminal proceedings shall have
been dismissed or result in a final disposition in favor of the employee.
However, should the borough determine that there is good cause to
dismiss the employee arising out of the incident or related incidents
of the criminal prosecution, the borough will not reimburse the employee
or official for legal defense and costs of defending the suit, even
though criminal proceedings against the employee may be dismissed
or the employee found not guilty.
A.
The obligation of the Borough of Seaside Heights to
defend and indemnify its employees for acts or omissions arising out
of or in the course of the performance of the duties of that person
shall be limited to those circumstances under which the borough itself
would be liable for the acts of its employees under the doctrine of
respondeat superior, except that the borough shall defend any such
officer or employee sued under the Federal Civil Rights Act, provided
that the Mayor and/or Committee shall not have concluded that such
act or omission was outside the scope of the responsibilities of said
officer or employee.
B.
Furthermore, the borough shall not defend and save
harmless any 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.
Also specifically excluded from the provisions of
this chapter are any municipal employee or official providing any
form of professional medical services, such as doctors and nurses,
insofar as said civil action arises out of or concerns those professional
medical services.
D.
The borough shall not be responsible for the defense
or indemnification of any official or employee of the borough, when
the governing body 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 borough and the public employee.
(4)
The defense of the action or proceeding is provided
for by an insurance policy or policies, whether obtained by the borough
or by any other person.
(5)
The public employee failed to deliver to the Borough
Administrator, within 10 calendar days after the time he is served
with any summons, complaint, process, notice, demand or pleading,
the original or a copy of the same.
(6)
The public employee has failed to cooperate fully
with the defense.
Whenever the borough provides any defense required
of it under this chapter, the borough, 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 borough is required to provide
a defense under this chapter, the borough shall pay or shall reimburse
the public employee for:
B.
In addition, in any case where the borough would be
required to provide a defense under this chapter except for the fact
that such defense is provided for by insurance, the borough shall
provide indemnification as aforesaid, but only to the extent not covered
by insurance.
Nothing in this chapter shall authorize the
borough to pay for punitive or exemplary damages or damages resulting
from the commission of a crime.
