[HISTORY: Adopted by the Township Committee of the Township of Waterford 6-25-1997
by Ord. No. 97-13. Amendments noted where applicable.]
GENERAL REFERENCES
Personnel policies — See Ch. 44.
As used in this chapter, the following terms shall have the meanings
indicated:
Shall include any employee of the Township of Waterford and shall
include any elected or appointed official, counsel or special counsel, or
any officer, employee or servant, whether or not compensated, who is authorized
to perform any act or service for the Township of Waterford. The term "public
employee" shall also include persons formerly holding office or employment,
provided the events giving rise to a cause of action or claim hereunder conform
to the requirements herein established.
[Amended 6-9-2004 by Ord. No. 204-7]
The means by which such public employee may respond to any suit,
allegation or cause of action. The Township of Waterford 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 of that employee
in the scope of his or her 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
the Township of Waterford against any such employee. Expressly exempted from
this chapter providing defense and indemnification to public employees of
the Township of Waterford are any charges, allegations or actions of whatever
nature asserted by the Township of Waterford 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.
The Mayor and Committee for the Township of Waterford finds as follows:
A.
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.
Said Tort Claims Act also specifies under what circumstances
a public entity may defend and indemnify its officials, employees and servants.
C.
The Mayor and Committee for the Township of Waterford
hereby provides, 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.
Such defense and indemnification are especially appropriate
for members of appointed boards who serve the Township of Waterford without
monetary compensation.
E.
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 damages 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 costs of defending
the Township of Waterford and its employees and agents in the event of such
actions.
A.
Whenever a civil action shall be brought against any
person holding an office, position or employment with the Township of Waterford
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 Township of Waterford
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 Township of Waterford does not, by indemnifying its employees against
punitive damage, indirectly or directly waive its own immunity against such
claims. (See T&M Homes, Inc. v. Pemberton Twp., 190 N.J. Super. 637.)
B.
Whenever a civil action shall be brought against any
person holding an office, position or employment with the Township of Waterford
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 Township of Waterford
shall provide payment of that portion of any costs of defense of said action
not covered by a policy of insurance. Whenever any insurance policy whose
purpose is to provide the defense and indemnification of the Township of Waterford
or its public employees is in dispute, the Township of Waterford will stand
in the place of the insurance carrier, subject to all rights of subrogation,
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 Township of Waterford in
any and all of its efforts to resolve any disputed insurance coverage.
By common law and the express provisions of this chapter, the Township
of Waterford'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
Township of Waterford will not provide the means for defense nor indemnify
any public employee in those instances where the Township of Waterford has
initiated the charges or action. In the event that any such public employee
is charged with criminal charges and he or she is later acquitted, any application
to recover the cost of his or her 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 that the Township of Waterford elects to assert such administrative
charges and even if the employee should hereafter 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.
