Borough of New Providence, NJ Chapter 63 INDEMNIFICATION OF OFFICERS AND EMPLOYEES

[HISTORY: Adopted by the Mayor and Council of the Borough of New Providence 4-12-1982 as Ord. No. 82-4 (Ch. 19, Art. IV, of the 1973 Code of Ordinances). Sections 63-2B and 63-3B amended at time of adoption of Code; see Ch. 1, General Provisions, Art. I. Other amendments noted where applicable.]

§ 63-1 Definitions.

As used in this chapter, the following terms shall have the meanings indicated:

OFFICIAL OR MUNICIPAL OFFICIAL

A present or former municipal employee, appointee, official, elected official or member of the various boards and agencies of the Borough of New Providence, Union County, New Jersey.

§ 63-2 Civil actions.

A. Subject to the limitations set forth in a subsequent section of this chapter, whenever any civil action has been or shall be brought against any municipal official for any alleged action or omission arising out of or in the course of the performance of the duties of such office, position or employment as a municipal official, the borough shall defray all costs of defending such action, including reasonable counsel fees and expenses, and shall save harmless and protect such persons from any financial loss resulting from the litigation except in the case of gross or willful negligence. The cost of the appeal may likewise by borne by the borough, provided that the Mayor and Council shall adopt a resolution approving expenditure of said appeal costs.

B. The Borough Attorney shall represent the municipal official; provided, however, that if the municipal official elects not to be represented by the Borough Attorney or there exists a conflict of interest, the obligation of the borough hereunder shall be limited to pay for professional legal services and expenses only as the same shall be determined reasonable in the sole discretion of the Mayor and Borough Council by duly adopted resolution.[1]

[1] Editor's Note: Amended at time of adoption of Code; see Ch. 1, General Provisions, Art. I.

§ 63-3 Criminal actions.

A. The borough shall not defray the cost of defending any indictable criminal action against any municipal official except as may be authorized by state statute, other municipal ordinance or resolution of the Mayor and Council of the Borough of New Providence; and in those circumstances, the responsibility or obligation for defraying the cost or any part thereof in defending such municipal official shall be applicable only when such a proceeding shall have been dismissed or result in a final disposition in favor of the municipal official.

B. The borough shall defray the reasonable cost of defending a criminal action involving a nonindictable offense by any municipal official, provided that such a proceeding shall be dismissed or result in a final disposition in favor of the municipal official, and further, such payment shall be limited to professional legal services and expenses as the same shall be determined in the sole discretion of the Mayor and Borough Council by duly adopted resolution.[1]

[1] Editor's Note: Amended at time of adoption of Code; see Ch. 1, General Provisions, Art. I.

C. In the event that the Mayor and Borough Council shall determine that there is good cause to dismiss the municipal official arising out of the incident or related incidents of the criminal prosecution, the borough will not reimburse the official for legal defense and costs of defending the same, notwithstanding that criminal proceedings against the official may be dismissed or the official found not guilty.

§ 63-4 Limitation of municipal obligations.

The Borough of New Providence shall not be obligated to defend and indemnify its municipal officials 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 exist policies of insurance, either held by the borough or by the municipal official, by virtue of which the municipal official is entitled to a defense of the action in question from the insurer.

E. The municipal official has failed to deliver to the Borough Administrator within 10 calendar days of the time the municipal official is served with any summons, complaint, process, notice, demand or pleading the original or a copy of such document or thereafter fails to cooperate with the borough and its officials in the defense of the matter.

F. The municipal official fails to request the defense of any action.

G. The action itself is instituted by the borough.

H. The claim arises from circumstances under which the borough itself would not be liable for the acts of its employees under the doctrine of respondeat superior.

§ 63-5 Insurance.

A. The Mayor and Borough Council be and hereby are authorized, from time to time and upon terms and conditions acceptable to them, to provide for the acquisition by purchase from an insurer licensed to do business in the State of New Jersey a policy or policies of insurance insuring municipal officials from and against claims which may be made against them in connection with the performance of their official duties; provided, however, that the failure of the Mayor and Borough Council to provide such insurance coverage shall not be deemed an omission to act; and no person or official shall be possessed of any right to have said insurance maintained for them under the terms of this section.

B. Authorization to acquire such insurance and to expend the public moneys necessary therefor shall be upon a duly adopted resolution of the Mayor and Council.