[HISTORY: Adopted by the Mayor and Council of the Borough of Fort Lee 3-29-2007 by Ord. No. 2007-18. Amendments noted where applicable.]
Editor's Note: This ordinance also repealed former Ch. 40, defense and Indemnification, adopted 10-23-2003 by Ord. No. 2003-37.
The Borough shall, upon timely notification and request, as provided herein, provide for the defense of any investigation, action, suit or proceeding, commenced or threatened, (collectively, "proceedings") whether civil, criminal, administrative or investigative, including cross-claims, counterclaims or cross-actions, (collectively, "defense"), against an employee on account of any act or omission arising out of or in the scope of his/her employment, office or elective or appointive position with, for or on behalf of the Borough (collectively, his/her "employment"), except as otherwise provided herein.
The defense of any such proceedings shall include all reasonable costs associated therewith, including legal, expert and technical fees and expenses, together with costs of appeal if an appeal is deemed necessary and appropriate by the Borough Attorney in his/her reasonable discretion; and the Borough shall indemnify, defend, save harmless and protect its employee from any financial loss resulting therefrom, except as otherwise provided herein.
The defense provided herein shall include the indemnification of the employee and shall save him/her harmless from financial loss resulting from any proceeding described herein, including claims, losses, expenses, judgments, damages, fines, attorney any other expert and technical fees, court costs, witness fees, transcript costs and any amount paid in settlement thereof and actually and reasonably incurred in connection therewith, to the extent provided by law, except as otherwise provided to the contrary herein. Expenses thus incurred may be paid in advance of final deposition of the action.
Any defense to any proceeding covered by virtue of this enactment shall be provided by attorneys and other personnel and service providers selected by the Borough or its insurance carriers.
To the extent that any defense in any covered proceeding is provided by or pursuant to any policy of insurance contracted by the Borough or available to any other party, the employee requesting and to whom the defense is to be provided shall be subject to all the requirements and restrictions of said policy of insurance to the same extent as is the Borough. In the event that any employee incurs any costs, fees and expenses without the prior written approval of the Borough, such liability so incurred shall be the sole responsibility of the employee and additionally, the Borough shall have no obligation to indemnify and save harmless the said employee in the applicable proceeding.
An employee shall not be entitled to defense, indemnification and save harmless hereunder unless, within 10 days of the time such employee is served with any subpoena, notice, demand, summons, complaint, order to show cause or pleading, he/she delivers the same or an accurate and complete copy thereof to the Borough Clerk, whereupon it shall be the duty of the Borough Clerk to forthwith notify the governing body, Borough Administrator or Director of Public Safety, when applicable, and the Borough Attorney thereof, provided that such time period may be extended nunc pro tunc for cause by a duly passed resolution of the governing body, and be it further provided that this notification requirement shall not be operative against any employee in any currently pending proceeding of which the Borough is on actual notice.
Any employee requesting and to whom defense indemnification and save harmless is to be provided shall cooperate fully and in good faith with the Borough, its attorneys, insurers, adjusters, investigators, experts and technical personnel engaged for this purpose, in the preparation and conduct of the defense or settlement or other disposition in any proceeding. If such employee shall neglect, fail or otherwise impede or refuse to cooperate as aforesaid, which decision thereof shall be in the sole discretion of the governing body, the governing body, on 10 days' written notice to the employee and opportunity to be heard, may for cause, declare all rights and benefits created hereunder for the benefit of such employee to be forfeited and terminated by affirmative vote of the governing body.
An employee shall not be entitled to defense, indemnification and save harmless in any proceeding in the following events or circumstances:
In any tenure, disciplinary action, suspension, termination, licensure or (de)certification affecting a proceeding brought by the Borough against the employee;
In any tenure, disciplinary action, suspension, termination, licensure or (de)certification affecting a proceeding brought by any other governmental unit or agency against the employee;
In the defense of any proceeding, including indemnification, save harmless, judgments or settlements based upon what the governing body has determined, upon 10 days' written notice to the employee and opportunity to be heard, that the proceeding is based upon actual fraud, malice, gross misconduct or constituted a crime or did not arise out of or in the scope of his/her duties, office or employment by or with the Borough.
In the payment of punitive or exemplary damages, unless the governing body first determines, upon 10 days, written notice to the employee and opportunity to be heard, that the employee's acts or omissions did not constitute actual fraud, actual malice, gross misconduct, and intentional tort or that involves a substantial and material violation of the Local Government Ethics Law, N.J.S.A. 40:22-1 et seq., as same may be, from time-to-time, amended;
Editor's Note: N.J.S.A. 40:22-1 et seq. were repealed by L. 1971, c. 197, effective July 1, 1971. See now N.J.S.A. 40A:14.
In any defense of or indemnification for and save harmless from professional malpractice;
In the event that any defense in any proceeding is refused or terminated by the governing body, as set forth supra, for failure of the employee to abide thereby or act in compliance therewith; and
In the event that any insurance coverage is available for payment, in whole or in part of the defense, indemnification and save harmless of the employee in any proceeding, to the extent of the said insurance coverage.