It is the intent and purpose of this chapter to provide for the indemnification
and defense of actions against certain public officials and employees as described
herein.
For the purposes of this chapter, unless the context clearly indicates
a different meaning, the following words and phrases shall be defined as set
forth:
INSURANCE
Coverage afforded by insurance of every kind, whether the premium
is paid by the borough, the municipal official or someone on their behalf.
MUNICIPAL OFFICIAL
Any officer or official, employee, Council member, Mayor, Board member
or other individual appointed or hired by the Mayor and Borough Council, whether
full- or part-time. The terms shall also include any volunteer serving the
borough on the Recreation Commission or as a coach or assistant on a team
organized under the auspices of the Recreation Commission, member of the Volunteer
Fire Department or member of the Ambulance Corps. The terms shall also include
any person elected by the voters to fill any position in the borough or any
person subsequently appointed to fill such position.
The borough shall not be required to provide any defense when the governing
body determines that:
A. The act or omission was not within the scope or incidental
to the duties of the public official.
B. The act or failure to act was the result of actual fraud,
actual malice, willful misconduct or an intentional wrong.
C. The defense of the action or proceeding is provided for
by an insurance, whether obtained by the borough or by any other person or
entity.
D. Where the action has been brought by the municipality
itself against the public official, or where the action is a criminal proceeding.
E. Where the public official has failed to provide to the
borough, within ten (10) calendar days after the time the public official
is served with any summons, complaint, process, notice, demand or pleading,
the original or a copy thereof.
F. Where the public official has failed to cooperate fully
with the defense.
With exception to §
21-6 of this chapter, which specifically provides for the appointment of attorneys on behalf of police officers, the borough may provide any defense required of it under this chapter through the attorney from its own staff or by employing other counsel. The borough shall in no event be responsible for the cost of attorney fees incurred by anyone unless it shall agree, in writing, to the terms of the representation.
Whenever the borough provides any defense required of it under this
chapter, the borough, through counsel, may assume exclusive control over representation
of the municipal official, and such official shall cooperate fully with the
defense.