[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:
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.
A.
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.
B.
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.
C.
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.
D.
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.
A.
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:
(1)
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.
(2)
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:
A.
The act or omission complained of was not within the
scope of employment or authority.
B.
The act or omission complained of was because of actual
fraud, willful misconduct or actual malice.
C.
The defense of the action or proceeding would create
a conflict of interest between the borough and the official involved.
D.
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.
E.
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.
F.
The official fails to request the defense of any action.
G.
If the action was brought by the borough.
A.
If the Mayor and Council determine to provide a defense
as authorized in this section, they may do so by:
(1)
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.
(2)
Hiring an attorney of its choice and paying the same
directly; or
(3)
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.
