[Added 3-28-1995 by Ord. No. 1887]
It is the intent and purpose of this article
to provide for the defense of actions against and the indemnification
of public employees for civil actions, as permitted by N.J.S.A. 59:10-1
et seq.
For the purpose of this article, unless the
context clearly indicates a different meaning, the following words
and phrases shall have the meanings set forth:
Coverage afforded by insurance policies of every kind whether
the premiums be paid by the Township, the public employee or someone
on his/her behalf.
Any officer, employee, board or committee member appointed
or hired by the Township Manager whether full-time or part-time. The
term shall also include any person elected by the voters to fill any
official position in the Township or any person subsequently appointed
to fill such a position.
The Township shall provide for the defense of
any action brought against a public employee on account of any act
or omission in the scope of his employment, and this obligation shall
extend to any cross actions, counterclaims or cross complaints against
such an employee. Where the allegations against the public employee
include allegations that the act or failure to act was because of
actual fraud, willful misconduct or actual malice, the Township shall
provide for the defense on the express condition that the public employee
shall execute a reimbursement agreement that shall provide that in
the event the public employee shall be adjudicated or admit to have
acted or failed to act because of actual fraud, willful misconduct
or actual malice then, in such event, the public employee shall reimburse
the Township for all fees and costs incurred by the Township in providing
such defense
The Township shall not provide a defense to
a public employee when the Township Council determines that:
A.
The act or omission was not within the scope of employment.
B.
The defense of the action or proceeding would create
a conflict of interest between the Township and the public employee,
including:
C.
Where defense of the action or proceeding is provided
for by an insurance policy or policies, whether obtained by the Township
or by any other person.
D.
Where the legal proceeding is instigated or brought
by the public employee.
E.
When public employee failed to deliver to the Township
Clerk, within 10 calendar days after the time he/she is served with
any summons, complaint, process notice, demand or pleading, the original
or a copy of the same.
F.
The public employee has failed to cooperate fully
with the defense.
A public employee shall, within 10 calendar
days of the time he/she is served with any summons, complaint, process
notice, demand or pleading, deliver the original or a copy thereof
to the Township Clerk.
A.
The governing body of the municipality shall provide
the public employee with the necessary means for the defense of such
action which may include assigning the Township Attorney or any attorney
for any board or committee of the Township, permitting the insurance
carrier to assign counsel, or payment to an attorney of the public
employee's own choice at a rate not to exceed that set forth by Township
ordinance.
B.
The public employee shall be obliged to cooperate
with the Township in the conduct of his/her defense. The refusal of
the public employee to cooperate with the Township shall terminate
the Township's obligation to defend the public employee.
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:
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.
C.
The amount of indemnification shall be reduced by
the amounts paid by any insurance coverage and/or any amounts received
by the public employee in any counteraction against the person or
person bringing the action against him/her.
D.
The Township shall not indemnify the public employee
for exemplary damages and punitive damages.
F.
If the acts alleged in the action ultimately are determined
to constitute actual fraud, actual malice, willful misconduct or an
intentional wrong, the public employee shall be required to reimburse
the Township for any costs and fees expended by the Township in defense
of the public employee.
If the public employee files a counteraction
in the legal proceedings, the municipality shall not be obligated
to reimburse him/her for any attorney's fees or court costs attributed
to such counteraction.
To the extent that N.J.S.A. 40A:14-155 provides
broader indemnification to members of the municipality's Police Department,
that statute shall supersedes this article.
Any legal action which may be covered by this
article which has not been reduced to final judgment as of the date
of passage shall be covered by the terms of the article.
