[HISTORY: Adopted by the Mayor and Council
of the Borough of Woodcliff Lake 12-18-1995 by Ord. No. 95-14 (Ch.
16 of the 1985 Code). Amendments noted where applicable.]
It is the intent and purpose of this chapter
to provide for the indemnification and defense of actions against
certain public officials and employees as described herein.
As used in this chapter, the following terms
shall have the meanings indicated:
Coverage afforded by insurance of every kind; whether the
premium is paid by the Borough, the municipal official or by someone
on their behalf.
Any officer or official, employee, council member, Mayor,
board member or other individual appointed or hired by the Mayor and
Borough Council, whether full or part time. The term shall also include
any volunteer serving the Borough on the Recreation Commission or
as a coach or assistant on a team organized under the auspices of
the Recreation Commission or Athletic Association, member of the Volunteer
Fire Department or member of the Ambulance Corps. The term shall also
include any person elected by the voters to fill any position in the
Borough or any person subsequently appointed to fill such position.
A.
Subject to the limitations and exceptions set forth
in the subsequent sections of this chapter, the Borough shall provide
for the defense of any action brought against a municipal official
on account of any act or omission arising out of or incidental to
performance of their duties and shall save harmless and protect such
persons from any financial loss resulting from the litigation subject
to the limitations and exceptions as set forth in the subsequent actions
of this chapter.
B.
The Borough Attorney may provide any defense required
of it under this chapter through the attorney from its own staff or,
if there exists a conflict of interest or if the Borough so desires,
by employing other counsel. The Borough in no event shall be responsible
for the cost of the attorneys' fees incurred by anyone unless the
Mayor and Council shall agree in writing to the terms of the representation.
A.
The Borough shall not defray the cost of defending
any indictable criminal action against any municipal official except
as may be authorized by state statute, other municipal ordinance or
resolution of the Mayor and Council of the Borough of Woodcliff Lake;
and in those circumstances the responsibility or obligation for defraying
the cost or any part thereof in defending such municipal official
shall be applicable only when such a proceeding shall have been dismissed
or result in a final disposition in favor of the municipal official.
B.
The Borough shall defray the reasonable cost of defending
a criminal action involving a nonindictable offense by any municipal
official, provided that such a proceeding shall be dismissed or result
in a final disposition in favor of the municipal official, and such
payment shall be limited to reasonable professional legal services
and expenses as determined by the Mayor and Borough Council.
The Borough of Woodcliff Lake shall not be obligated
to defend and indemnify its municipal officials when:
A.
A court or jury determines that the act or omission
was not within the scope of employment or authority or incidental
to the duties of the public official.
B.
A court or jury determines that the act or omission
was the result of actual fraud, actual malice, willful misconduct
or intentional wrong.
C.
Where an action has been brought by a municipal official
for defamation, libel or slander against another municipal official.
D.
The defense of the action or proceeding is provided
for by insurance, whether obtained by the Borough or by any other
person or entity except that the amount of any deductible required
by the aforesaid insurance policy and paid by the municipal official,
as well as verifiable costs incurred by the municipal official as
a direct result of the litigation, shall, with the approval of the
Mayor and Council, be reimbursed to such municipal official. In the
event a municipal official shall incur an increase in his or her insurance
premium as a result of the litigation brought against him or her,
such increase in the premium shall be reimbursed to the municipal
official during the term served by such official, provided that the
approval to pay such increase in premium be obtained from the Mayor
and Council.
E.
Where the action has been brought by the municipality
itself.
F.
The municipal official fails to request the defense
of any action.
G.
The claim arises from circumstances under which the
Borough itself would not be liable for the acts of its employees under
the doctrine of respondeat superior.
H.
Where the public official has refused to cooperate
fully with the defense.
A.
A municipal official shall not be entitled to indemnification
or reimbursement pursuant to this chapter unless, within 10 calendar
days of time he is served with any summons, complaint, process, notice,
demand or pleading, he delivers a copy thereof to the Borough Attorney.
The governing body may waive this ten-day limit if it finds good cause
for the delay and no prejudice to the Borough has occurred.
B.
The municipal official shall be under a continual
obligation and duty to cooperate with the Borough in the conduct of
his defense.
C.
Every municipal official, in order to make a request
for indemnification as provided in this chapter, shall establish that
they have followed to the best of their abilities all required procedures
and practices in the Borough and, where applicable, have followed
any legal opinions, court decisions, civil service directives or other
laws and regulations in the performance of their duties which gave
rise to the claim which is the basis for the indemnification. The
Mayor and Council may deny any request for indemnification if it finds
that the official or employee has not complied with this section.
D.
If the legal proceeding is terminated by an agreement
among the parties, then the Borough shall not be obligated to reimburse
the municipal official unless the Borough approves the settlement
agreement.
The Borough may, in its discretion, reimburse
a municipal official for a portion of expenses incurred prior to a
final decision in a legal proceeding, but the Borough reserves the
right to wait for a final determination before being obligated to
make any payments.
To the extent that N.J.S.A. 40A:14-155 provides
broader indemnification to members of the Borough of Woodcliff Lake
Police Department, that statute shall supersede this chapter.
The amount the Borough is obliged to reimburse
the municipal official shall be reduced by any insurance coverage
payable to the municipal official and by the net amount of any money
received by the municipal official in any counterclaim against the
person or persons bringing the actions against him.
This chapter shall apply retroactively to any
and all causes of action accruing prior to this date, including any
pending causes of action.
