[HISTORY: Adopted by the Council of the Borough of Fair Lawn 1-28-1986 by Ord. No. 1342-86 (Sec. 2-26 of the 1981 Revised General Ordinances). Amendments noted where applicable.]
This section shall hereafter be known and cited as the "Indemnification of Municipal Employees, Appointees and Officials."
As used in this chapter, the following terms shall have the meanings indicated:
- OFFICIAL or MUNICIPAL OFFICER
- A present or former municipal employee, appointee, official, elected official or member of the various boards, agencies and commissions of the Borough of Fair Lawn, Bergen County, New Jersey.
The Borough of Fair Lawn is hereby authorized to provide for the defense of actions brought against its officials and to indemnify such officials to the extent hereinafter set forth, and shall save harmless and protect such persons from any financial loss resulting from litigation.
The obligation of the Borough of Fair Lawn to defend and indemnify its officials for acts or omissions arising out of or in the course of the performance of the duties of that person shall be limited to those circumstances under which the borough itself would be liable for the acts of its officials under the doctrine of respondeat superior.
In the event an official or municipal officer is required to defend an action relating to his position subsequent to leaving office or municipal employment, the terms, conditions and provisions of this section shall apply.
In the event the official or municipal officer is being sued for punitive damages, the Borough of Fair Lawn shall not indemnify said official or municipal officer with respect to same but shall, to the extent provided herein, defend said official or municipal officer in said action and defray the costs of said defense.
The Borough of Fair Lawn shall defray the costs of defending any criminal action against any official (if the underlying allegations of said criminal action reasonably relate to or arise from the official's execution of his official duties). provided that:
It is authorized by state statute, municipal ordinance or by resolution, and provided that the criminal proceedings have been dismissed or result in a final disposition in favor of the official.
The Mayor and Council determines that there is no good cause to dismiss the official arising out of the incident or related incidents of the criminal proceedings.
The Mayor and Council shall not approve indemnification of the defense of any action if:
The act or omission complained of was not within the scope of employment or authority.
The act or omission complained of was because of actual fraud, willful misconduct or actual malice.
The defense of the action or proceeding would create a conflict of interest between the borough and the official involved.
There exists policies of insurance, either obtained by the borough or by another by virtue of which the municipal official is entitled to a defense of the action in question from the insurer. In the event the aforesaid insurance covers less than an entire defense to the particular action, indemnification shall be approved for that part of the defense not covered by insurance.
The municipal official has failed to deliver to the Mayor and Council, within 14 days of the time he or she is served with any summons, complaint, process, notice, demand or pleading, the original or copy of such document or thereafter fails to cooperate with the borough in the defense of the matter.
The official fails to request the defense of any action.
If the action was brought by the borough.
If the Mayor and Council determine to provide a defense as authorized in this section, they may do so by:
The Borough Attorney, if the Borough Attorney and the official or municipal officer requiring defense determine that there is no ethical conflict created by said representation.
Hiring an attorney of its choice and paying the same directly; or
Reimbursing the municipal official for reasonable attorney's fees expended or obligated to be expended by such official in the defense of the action.
In addition to the provisions hereof, all officials of the borough shall be entitled to defense and indemnification as provided in N.J.S.A. 59:10-1 et seq. and N.J.S.A, 59:10A-1 et seq.
All costs of defense and legal fees to be provided herein by the borough shall be calculated as reasonable prevailing fees as charged in the County of Bergen at the time they are incurred, and the borough shall only be responsible to that extent. In the event of a dispute as to the reasonableness of any fee to be paid by the borough in defense of an official or municipal officer, as provided herein, either party may seek review before the Superior Court of New Jersey, Bergen County, for adjudication.