Borough of Garwood, NJ Defense and Indemnification

Except as hereinafter provided, the Borough of Garwood shall, upon the request of any present or former official, employee or appointee of the Borough, provide for indemnification and legal defense of any civil action brought against said person or persons arising from an act or omission falling within the scope of their public duties.

The terms of this chapter and the definition of official, employee and appointee are to be construed liberally in order to effectuate the purposes of this chapter except that these terms shall not mean: a) any person who is not a natural person; b) any person, except any employee, while providing goods or services of any kind under any contract with the Borough except an employment contract; c) any person while providing legal or engineering services for compensation unless said person is an employee of the Borough; and d) any person who as a condition of his or her appointment or contract is required to indemnify and defend the Borough and/or secure insurance.

The Borough shall provide for defense of and indemnify any present or former official, employee or appointee of the Borough who becomes a defendant in a civil action if the person or persons involved: a) acted or failed to act in a matter in which the Borough has or had an interest; b) acted or failed to act in the discharge of a duty imposed or authorized by law; and c) acted or failed to take action in good faith. For purposes of this chapter, the duty and authority of the Borough to defend and indemnify shall extend to a cross-claim or counterclaim against said person.

The Borough is not required to indemnify any person against the payment of punitive damages, penalties, or fines, but may provide for the legal defense of such claims in accord with the standards set forth herein, and 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 Mayor and Council, the acts committed by the employee upon which the damages are based did not constitute actual fraud, actual malice, willful misconduct or an intentional wrong. The Borough may refuse to provide for the defense and indemnification of any civil action referred to herein if the Mayor and Council of the Borough of Garwood determines that: a) the act or omission did not occur within the scope of a duty authorized or imposed by law; b) the act or failure to act was the result of actual fraud, willful misconduct or actual malice of the person requesting defense and indemnification.

In any other action or proceeding, including criminal proceedings, the Borough may provide for the defense of a present or former official, employee or appointee, if the Mayor and Council of the Borough of Garwood concludes that such representation is in the best interest of the Borough and that the person to be defended acted or failed to act in accord with the standards set forth in this chapter.

Whenever the Borough provides for the defense of any action set forth herein and as a condition of such defense, the Borough may assume exclusive control over the representation of such persons defended, and such person shall cooperate fully with the Borough.

The Borough may provide for the defense pursuant to this chapter by authorizing its attorney to act in behalf of the person being defended or by employing other counsel for this purpose or by asserting the right of the Borough under any appropriate insurance policy that requires the insurer to provide defense.