[HISTORY: Adopted by the Mayor and Council of the Borough of Tuckerton 8-1-1988
by Ord. No. 10-1988. Amendments noted where applicable.]
Subject to the limitations set forth in the subsequent sections of this
chapter, whenever any civil action has been or shall be brought against any
person (hereinafter referred to as "employee") holding or formerly holding
any office, position or employment with the Borough of Tuckerton for any action
or omission arising out of or in the course of the performance of the duties
of such office, position or employment, the Borough shall defray all costs
of defending such action, including reasonable counsel fees and expenses,
together with costs of appeal, if any, and shall save harmless and protect
such persons from any financial loss resulting from the litigation. The Borough
Solicitor, or another attorney selected by the Mayor, with the advice and
consent of the Borough Council, shall represent the Borough official or employee.
The Borough shall not defray the costs of defending any criminal action
against any municipal employee, except as may be authorized by state statute
or other municipal ordinance or resolution of the Borough of Tuckerton, and,
in those circumstances, the responsibility for defraying the costs of defending
such employee shall be applicable only when such criminal proceedings shall
have been dismissed or result in a final disposition in favor of the employee.
However, should the Borough determine that there is good cause to dismiss
the employee rising out of the incident or related incidents of the criminal
prosecution, the Borough will not reimburse the employee or official for legal
defense and costs of defending the suit, even though criminal proceedings
against the employee may be dismissed or the employee found not guilty.
A.
The obligation of the Borough of Tuckerton to defend
and indemnify its employees for acts or omissions arising out of or in the
course of the performance of the duties of that person shall be limited to
those circumstances under which the Borough itself would be liable for the
acts of its employees under the doctrine of respondent superior, except that
the Borough shall defend any such officer or employee sued under the Federal
Civil Rights Act, provided that the Mayor and/or Council shall not have concluded
that such act or omission was outside the scope of the responsibilities of
said officer or employee.
B.
Furthermore, the Borough shall not defend and save harmless
any employee committing an intentional or willful act or willful omission
arising out of or in the course of the performance of the duties of such office,
position or employment
C.
Also specifically excluded from the provisions of this
chapter is any municipal employee or official providing any form of professional
medical services, such as a doctor and nurse, insofar as said civil action
arises out of or concerns those professional medical services.
D.
The Borough shall not be responsible for the defense
or indemnification of any official or employee of the Borough when the Borough
Council has determined that:
(1)
The act or omission was not within the scope of employment.
(2)
The act or failure to act was because of actual fraud,
willful misconduct or actual malice.
(3)
The defense of the action or proceeding would create
a conflict of interest between the Borough and the public employee.
(4)
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.
(5)
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.
(6)
The public employee has failed to cooperate fully with
the defense.
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:
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.