[HISTORY: Adopted by the Mayor and Council of the Borough
of Westville 12-8-1999 (Ch. 9 of the 1974 Code). Amendments noted where applicable.]
The Mayor and Council for the Borough of Westville finds as
follows:
A.Â
The State of New Jersey, through the passage of the Tort Claims Act,
as amended and supplemented from time to time (N.J.S.A. 59:1-1 et
seq.), has determined the circumstances under which claims may be
made against public entities and their officials, employees and servants.
B.Â
Said Tort Claims Act also specifies under what circumstances any
public entity may defend and indemnify its officials, employees and
servants.
C.Â
The Mayor and Council for the Borough of Westville hereby provide,
under certain circumstances, for the defense and indemnification of
its officers, employees and servants in the good-faith performance
of their duties and responsibilities.
D.Â
Such defense and indemnification are especially appropriate for members
of appointed boards who serve the Borough of Westville without monetary
compensation.
E.Â
The indemnification of municipal employees is also expressly designed
to avoid a conflict between the employer and the employee when claims
are lodged. The Supreme Court for the State of New Jersey has noted
that, because the law does not require, but does permit, indemnification
of local public entity employees, conflicts of interest may arise
in the absence of such indemnification where an entity and an employee
are both sued for compensatory damages in, for example, a civil rights
action and both employ the same attorney to defend. Likewise, the
Court pointed out such conflict could arise because the employee is
liable for punitive damage and the entity is not. (See Petition for
Review of Opinion 552, 102 N.J. 194.) Accordingly, this indemnification
policy is also intended to increase the efficiency and reduce the
cost of defending the Borough of Westville and its employees and agents
in the event of such actions.
As used in this chapter, the following terms shall have the
meanings indicated:
Refers to the means by which such public employee may respond
to any suit, allegation, or cause of action. The Borough of Westville
shall provide 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 by that employee in the scope of their
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 Borough
of Westville against any such employee. Expressly exempted from this
chapter providing defense and indemnification to public employees
of the Borough of Westville are any charges, allegations, or actions
of whatever nature asserted by the Borough of Westville against its
own public employees.
To secure against loss or damage which may occur in the future,
or to provide compensation for or to repair loss or damage already
suffered; to insure; to save harmless.
Includes any employee of the Borough of Westville and shall
include 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 Borough of Westville. 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.
A.Â
Whenever a civil action should be brought against any person holding
an office, position or employment with the Borough of Westville 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
of Westville shall provide payment of that portion of any exemplary
or punitive damage award not otherwise covered by a policy of insurance.
Note, however, that the Borough of Westville does not, by indemnifying
its employees against punitive damage, indirectly or directly waive
its own immunity against such claims. (See T & M Homes. Inc.,
vs. Pemberton Twp. 190 N.J. Super. 637.)
B.Â
Whenever a civil action shall be brought against any person holding
an office, position or employment with the Borough of Westville 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
of Westville shall provide payment of that portion of any costs of
defense of said action not covered by the Borough's policy of
insurance. Whenever any insurance policy whose purpose is to provide
the defense and indemnification of the Borough of Westville or its
public employees is in dispute, the Borough of Westville will stand
in the place of the insurance carrier, subject to all rights of subrogation,
to provide for the defense and indemnification of its employees as
specified herein. Said public employee has an affirmative duty, to
be eligible for said defense and indemnification, to cooperate with
the Borough of Westville in any and all of its efforts to resolve
any disputed insurance coverage.
By common law and this express provision to this chapter, the
Borough of Westville's authority to indemnify is limited to acts
by public employees that are within the scope of their employment
and which are not criminal, fraudulent, malicious or instances of
willful misconduct. Additionally, the Borough of Westville will not
provide the means for defense nor indemnify any public employee in
those instances where the Borough of Westville has initiated the charges
and action. In the event any such employee is charged with criminal
charges and he or she is later acquitted, any application to recover
the costs of their defense is expressly conditioned upon the ultimate
determination of administrative charges which may or may not arise
out of the same conduct or behavior. Notwithstanding all of the above,
in the event the Borough of Westville elects to assert such administrative
charges and even if the employee should thereafter prevail, all such
claims for reimbursement for costs of defense will be subjected to
the controlling statutory and common law as opposed to this chapter.
(Note: The "may or may not," clause addresses those instances wherein
an officer is suspended on unrelated charges, but the proceeding is
tolled by a parallel criminal action.)
