[HISTORY: Adopted by the Mayor and Council of the Borough of Kinnelon 10-19-1989
by Ord. No. 19-89 (Ch. 38 of the 1972 Code). Amendments noted
where applicable.]
GENERAL REFERENCES
Personnel policies — See Ch. 53.
It is the intent and purpose of this chapter to provide for the defense
of actions against and the indemnification of public employees for civil actions,
as permitted by N.J.S.A. 59:10-1 et seq.
As used in this chapter, the following terms shall have the meanings
indicated:
Any official, officer or member of the boards, agencies and commissions
of the Borough or employee or servant whether or not compensated or part-time,
who is authorized to perform any act or service; provided, however, that the
term does not include an independent contractor.
Any employee or former employee of the Borough.
The Borough shall provide for the defense of any action brought against
a public employee on account of any act or omission in the scope of his employment,
and this obligation shall extend to any cross-actions, counterclaims or cross-complaints
against such an employee.
The provisions of § 24-3 shall not be applicable when the Mayor and Council determines that:
A.
The act or omission was not within the scope of employment;
B.
The act or failure to act 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 public employee;
D.
The defense of the action or proceeding is provided for
by an insurance policy or policies, whether obtained by the Borough or by
any other person;
E.
The public employee failed to deliver to the Borough
Clerk, within 10 calendar days after the time he is served with any summons,
complaint, process, notice, demand or pleading, the original or a copy of
the same;
F.
The public employee has failed to cooperate fully with
the defense;
G.
Where the Borough has brought the action against the
employee; or
H.
Where the action is a criminal or disciplinary action.
The Borough may provide any defense required of it under this chapter
through an attorney from its own staff or by employing other counsel.
Whenever the Borough provides any defense required of it under this
chapter, the Borough, through counsel, may assume exclusive control over the
representation of the public employee, and such employee shall cooperate fully
with the defense.
A.
In any case where the Borough is required to provide
a defense under this chapter, the Borough shall pay or shall reimburse the
public employee for:
(1)
Any bona fide settlement agreements entered into on behalf
of the employee.
(2)
Any judgments entered against the employee.
(3)
If the Borough has failed to provide such required defense,
all costs of defending the action, including reasonable counsel fees and expenses,
together with costs of any appeal.
B.
In addition, in any case where the Borough would be required
to provide a defense under this chapter except for the fact that such defense
is provided for by insurance, the Borough shall provide indemnification as
aforesaid, but only to the extent not covered by insurance.
Nothing in this chapter shall authorize the Borough to pay for punitive
or exemplary damages or damages resulting from the commission of a crime.
A.
As authorized by N.J.S.A. 59:10-4, the Borough shall
indemnify the employee for exemplary damages and 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 act.
C.
Where the Borough has agreed to indemnify the employee
for punitive damages, said employee shall indemnify the Borough for punitive
damages, including attorneys' fees, if the acts ultimately are determined
to constitute actual fraud, actual malice, willful misconduct or an intentional
wrong.
