[HISTORY: Adopted by the Mayor and Council of the Borough of River
Edge 6-20-1994 as Ord. No. 1106. Amendments noted where applicable.]
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:
Coverage afforded by insurance of every kind, whether the premium
is paid by the borough, the municipal official or someone on their behalf.
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.
A.
The borough shall provide for the defense of any action brought against a municipal official on account of any act or omission arising out of or incidental to performance of their duties, and this obligation shall extend to any complaint, counterclaim, cross claim or cross complaint against such municipal official, unless excepted by the terms of § 21-4.
B.
The terms and provisions of this chapter shall be subject
to any insurance plan or policy in effect at the time that any claim shall
apply or be asserted. To the extent that any provision of this chapter shall
be at variance with the rules, regulations and terms of any plan of insurance
maintained by the borough, said rules, regulations and provisions of the borough's
plan of insurance shall supersede this chapter and shall be dispositive of
any issue concerning the implementation of the purpose of this chapter.
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.[1]
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.
A.
Purpose. The purpose of this section is to provide any
borough police officer or member of the borough police force named as a defendant
in an action or legal proceeding only if that action or legal proceeding arises
out of and is directly related to the lawful exercise of police powers in
the furtherance of official duties, with the policy adopted by the Police
Department and Borough of River Edge, for the provision of necessary means
for the officer's defense of such action or proceeding.
(1)
The Borough of River Edge will provide a member or officer
of the Police Department with the necessary means for the defense of an action
or legal proceeding arising out of and directly related to the lawful exercise
of police powers, in furtherance of official duties.
(2)
The borough will not provide the necessary means for
defense in a disciplinary proceeding instituted against the officer by the
municipality or in a criminal proceeding instituted as a result of a complaint
on behalf of the borough. Should such a disciplinary or criminal proceeding
instituted by or on complaint of the borough be dismissed or finally determined
in favor of member or officer of the borough's Police Department, that member
or officer shall be reimbursed for his attorney's reasonable fees.
B.
Procedures.
(1)
The officer or member of the borough's Police Department,
within five (5) days of being notified that he or she is a defendant in an
action or legal proceeding, shall advise the Chief of Police.
(2)
Upon notification, the Chief of Police will evaluate,
or cause an evaluation to be made, of the complaint's circumstances. This
evaluation will be for the purpose of determining whether the officer has
met the following conditions:
(3)
The Chief will advise the officer involved of the following:
(a)
The evaluation and purpose;
(b)
That he may, subject to the limitations stated below,
request that an attorney be appointed to represent him in the action or legal
proceeding by the borough;
(c)
That his attorney shall be paid a reasonable legal fee,
to be approved, prior to his appointment, by the Mayor and Council.
(d)
That the officer does not have an absolute right to counsel
of his own choosing at municipal expense and that the borough present the
officer with a choice of accepting assigned counselor foregoing the benefit
of having the borough provide him with the necessary means for defense of
the action or legal proceedings;
(e)
In the event of a disciplinary proceeding instituted
against the officer by the municipality or any criminal proceeding as a result
of a complaint on behalf of the borough, the borough will not provide him
with an attorney or necessary means for defense of such disciplinary proceeding
or complaint; except that if the disciplinary proceeding or complaint is dismissed
or finally determined in favor of the officer, that he shall be reimbursed
for his reasonable defense expense;
(f)
The officer, if entitled, shall advise the Chief of the
name, address and telephone number of the attorney whom the officer would
request to be appointed by the borough.
(4)
Upon completion of the evaluation, the Chief of Police
shall submit a memorandum to the Mayor and Council, with a copy to the Borough
Administrator and Clerk. The memorandum shall be maintained as a confidential
document. The purpose of the memorandum shall be to report the Chief of Police's
evaluation of the circumstances of the complaint and a determination as to
whether the officer has satisfied the conditions prerequisite to the borough's
providing the necessary means for the officer's defense. The memorandum shall
also include the name and address of the attorney whose appointment the officer,
if entitled, would request to defend him.
(5)
The Mayor and Council shall reserve the right to accept
the Chief's evaluation, modify it or to substitute a different means for defense
of the action or legal proceedings against the affected officer. In the event
that the officer's request for the appointment of his choice of an attorney
is denied, he shall be notified by the Chief of Police. In that event, the
officer shall be advised of the denial and of the name, address and telephone
number of the attorney who will have been appointed to him by the Mayor and
Council.
(6)
The borough ordinance and traffic related complaints,
signed against an officer; the Chief of Police, upon completion of his evaluation
to determine whether the above stated conditions are satisfied, is empowered
to refer the matter directly to the borough's prosecutor, whose duty shall
be to provide a defense against the charges. The Chief of Police will submit
a memorandum of his evaluation and referral to the Mayor and Council, with
a copy to the Borough Administrator and Clerk. The memorandum will be considered
a confidential document.
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.
A.
In any case where the borough is required to provide
a defense under this chapter, the borough shall pay or reimburse the municipal
official for the following:
B.
In addition to Subsection A(1) of this section, 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, either through the borough or the individual, the borough shall provide indemnification as aforesaid, but only to the extent that liability exists which is not covered by insurance and is not excepted by the terms of § 21-4 of this chapter.[1]
C.
In addition to the above Subsections A(1) and (2), the borough shall indemnify public officials as defined herein for exemplary or punitive damages, provided that the acts committed by the borough official, upon which said damages are based, did not constitute actual fraud, actual malice, willful misconduct or an intentional wrong.
