[HISTORY: Derived from Sec. 2-6A of the 1975 Code (Ord. No. 11-89). Amendments noted where applicable.]
A. 
Definitions. For the purpose of this chapter, unless the context clearly indicates a different meaning:
MUNICIPAL OFFICIAL
A present or former municipal employee, appointee, official, elected official or member of the various boards, agencies and commissions of the Borough of Franklin, whether full-time or part-time, appointed, elected or hired.
Pursuant to the provisions of N.J.S.A. 59:10-1 et seq. and subject to the provisions of this chapter, the Borough of Franklin is authorized to provide for the defense of actions brought against its municipal officials and shall indemnify such officials to the extent permissible by law and hereinafter set forth and shall save harmless and protect such persons from financial loss resulting from litigation. Such indemnification shall arise out of any action or legal proceeding of a noncriminal nature directly related or incidental to the performance of the duties of the position or office held by such municipal official. The Borough of Franklin may indemnify an employee for exemplary or punitive damages resulting from the employee's civil violation of state or federal law if, in the opinion of the Council of the Borough of Franklin, the acts committed by the employee upon which damages are based did not constitute actual fraud, actual malice, willful misconduct or an intentional wrong.
The municipal official shall not be entitled to indemnification or reimbursement pursuant to this chapter unless within 10 calendar days of the time such official is served with any summons, complaint, process, notice, demand or pleading, the official delivers the original or a copy thereof to the Borough Attorney. The municipal official shall be obliged to cooperate with the borough in the conduct of the official's defense. Whenever competent and disinterested legal counsel is available to the borough through any insurance coverage, the municipal official shall be obliged to be represented by such counsel. If the borough wished to use the Borough Attorney or the attorney for any board or committee of the borough to defend that action, the municipal official shall be obliged to be represented by that attorney unless there is a conflict of interest. The refusal of the municipal official to cooperate with the borough shall terminate the borough's obligation to reimburse the municipal official.
A. 
If the Borough Council determines to provide a defense as authorized by this chapter, it may do so by:
(1) 
Hiring an attorney of its choice; or
(2) 
Reimbursing the municipal official for reasonable attorneys fees and costs incurred in connection with the defense of the act.
B. 
A resolution shall be adopted appointing counsel for the defense and determining counsel fees. The hourly rate shall not exceed the then rate paid to the Borough Attorney without a written resolution of the Council.
C. 
Nothing in this section shall preclude the borough and the Borough Attorney from demanding and reviewing periodically any costs and attorneys fees in connection with the defense of the municipal official. In the event a dispute over attorneys fees arises, the borough reserves the right to submit the dispute to the Fee Arbitration Committee of the district or pursue any other course of legal action.
A. 
The borough shall not be obligated to provide reimbursement in the following instances:
(1) 
Where the act or omission was not within the scope of employment or authority;
(2) 
Where the act or omission complained of was because of actual fraud, willful misconduct or actual malice;
(3) 
Where the legal proceeding is instigated or brought by the Borough of Franklin against the municipal official;
(4) 
Where the legal proceeding involves a question concerning the election laws;
(5) 
Where the action is brought against the borough by the municipal official.
B. 
If any such legal proceeding shall be dismissed or finally determined in favor of the municipal official or employee, the official or employee shall be reimbursed for the expense of the defense, provided that:
(1) 
The employee proves that the act or omission was within the scope of employment or authority; and
(2) 
The borough fails to prove the act or omission complained of was because of actual fraud, willful conduct or actual malice.
The amount the borough is obliged to reimburse the municipal official shall be reduced by any insurance coverage payable to the municipal official by the net amount (that is, any recovery less attorneys' fees, disbursements and court costs) of any money received by the municipal official in any counteraction against the person or persons bringing the action against him.
If the legal proceeding is terminated by an agreement among or between the parties, then the borough shall not be obligated to reimburse the municipal official unless the borough approves the settlement agreement.
If the municipal official files a counteraction in the legal proceedings, the borough shall not be obligated to reimburse for any attorney fees or court costs attributable to such counteraction.
The obligation of the borough to reimburse a municipal official for expenses shall arise upon final determination of the legal proceedings. In its discretion, the borough may reimburse a municipal official for a portion of expenses incurred prior to a final decision.
To the extent that N.J.S.A. 40A:14-155 provides broad indemnification to members of the Borough of Franklin Police Department, that statute shall supersede this chapter.
This chapter shall take effect upon final passage and publication according to law. Any legal proceeding which may be covered by this chapter which has not been reduced to a final judgment as of the date of passage shall be covered by the terms of this chapter.