Except as hereinafter provided, the Borough of Kenilworth, hereinafter
known as the "Borough," shall, upon the request of any present or
former official, employee or appointee of the Borough, provide for
indemnification and legal defense of any civil action brought against
said person or persons arising from an act or omission falling within
the scope of their public duties.
The terms of this chapter and the definition of "official,"
"employee" and "appointee" are to be construed liberally in order
to effectuate the purposes of this chapter, except that these terms
shall not mean:
A. Any person who is not a natural person;
B. Any person while providing goods or services of any kind under any
contract with the Borough except an employment contract;
C. Any person while providing legal or engineering services for compensation
unless said person is a full-time employee of the Borough; and
D. Any person who as a condition of his or her appointment or contract
is required to indemnify and defend the Borough and/or secure insurance.
The Borough shall not indemnify any person against the payment
of punitive damages, penalties, or fines but may provide for the legal
defense of such claims in accord with the standards set forth herein.
The Borough may refuse to provide for the defense and indemnification
of any civil action referred to herein if the governing body determines
that:
A. The act or omission did not occur within the scope of a duty authorized
or imposed by law;
B. The act or failure to act was the result of actual fraud, willful
misconduct or actual malice of the person requesting defense and indemnification;
or
C. The defense of the action or proceeding by the Borough would create
a conflict of interest between the Borough and the person or persons
involved.
In any other action or proceeding, including criminal proceedings,
the Borough may provide for the defense of a present or former official,
employee or appointee if the governing body concludes that such representation
is in the best interest of the Borough and that the person to be defended
acted or failed to act in accord with the standards set forth in this
chapter.
Whenever the Borough provides for the defense of any action
set forth herein and as a condition of such defense, the Borough may
assume exclusive control over the representation of such persons defended,
and such person shall cooperate fully with the Borough.
The Borough may provide for the defense pursuant to this chapter
by authorizing its Attorney to act in behalf of the person being defended
or by employing other counsel for this purpose or by asserting the
right of the Borough under any appropriate insurance policy that requires
the insurer to provide defense. In the event the Borough provides
such defense and it determines it is in its best interest to settle
any matter, the employee's consent to such settlement shall not
be required, provided that the Borough pays in full any compensation
payable in such settlement.