[HISTORY: Adopted by the Township Committee of the Township of Washington 6-13-1990 by Ord. No. 90-8. Amendments noted where applicable.]
Employee relations — See Ch. 9.
The Township Committee finds and declares that:
Public officials, officers and employees, who are required as a result of their position, duties or employment to protect the interests of the township, must be free to do so without fear of financial ruin arising from claims brought against them for the performance of their public duties and responsibilities.
The township has the moral obligation to stand behind and support its public officials, officers and employees when they are acting within the scope of their offices or employment in performing their public duties and responsibilities.
It is the public policy of the State of New Jersey to encourage municipalities to indemnify their public officials, officers and employees in the same manner as the state itself indemnities its officers, agents and employees.
N.J.S.A. 59:10-4 specifically empowers the township to provide such indemnification.
The Township of Washington is desirous of providing indemnification to its public officers, officials and employees, subject to the requirements of law and the provision of this chapter.
Unless a contrary meaning is specifically indicated herein, the following definitions shall apply in construing and applying the provisions of this chapter:
- The Township Attorney or his designee.
- A demand against a public official, officer or employee arising from the performance of that official, officer or employee of his public duties or responsibilities, whether or not the same is subsequently deemed valid, whether civil or criminal.
- The Township Clerk of the Township of Washington or his designee.
- The Township Committee of the township.
- To provide reimbursement for expenses of or to provide legal representation for a public official, officer or employee or to pay or provide payment of a claim made against such public official, officer or employee.
- PUBLIC DUTY OR RESPONSIBILITY
- Any task assigned to a public official, officer or employee by the township which fulfills a public need or which is otherwise within the scope of such official's, officer's or employee's employment.
- PUBLIC EMPLOYEE
- An employee of the township who receives a salary or hourly wage, if engaged in performing public duties or responsibilities, who is not otherwise defined as a public officer or public official.
- PUBLIC OFFICER
- Any elected or appointed official exercising policy, judicial or quasijudicial power or any statutory officer, whether full- or part-time, or any member of any advisory body created pursuant to the Township Code, including but not limited to the members of the Township Committee, Planning Board, Board of Adjustment, Sewerage Authority, Historic Preservation Commission, Environmental Commission or Industrial Commission, the Township Clerk, Deputy Clerk, Tax Collector, Deputy Tax Collector, Tax Assessor, Deputy Tax Assessor and the Municipal Judge.
- PUBLIC OFFICIAL
- Any part-time appointed professional employed by the township to perform public duties and responsibilities of an administrative or advisory nature pursuant to statute, including but not limited to the Chief Financial Officer of the township, the Township Treasurer, Township Auditor, Township Attorney, Township Engineer, Township Planning Consultant or similar advisors appointed by or assigned to any advisory board or agency.
- The Township of Washington, in the County of Warren and State of New Jersey.
Except as may otherwise be set forth herein, all definitions contained in N.J.S.A. 59:1-3 are incorporated herein to the extent applicable and shall govern the provisions of this chapter.
Any term not otherwise defined herein shall be given its ordinary denotative meaning.
The term "shall" shall implicate a mandatory obligation, and the term "may" shall implicate a discretionary power.
The terms "public officer," "public official" and "public employee" include any former public officer, public official or public employee, where a claim arises from his former tenure or employment.
The township shall indemnify any public officer, public official or public employee from any claim brought against him arising from the discharge by said public officer, public official or public employee of his public duties or responsibilities, except to the extent that indemnification is excluded pursuant to § 18-4 herein.
The township shall not indemnify a public officer, public official or public employee when:
After investigation, it can be determined that the claim did not arise as a result of the discharge of a public duty or responsibility by the public officer, public official or public employee.
The claim arose from an act or omission which was clearly beyond the scope of the public officer's, public official's or public employee's official duties or employment or was clearly ultra vires.
The claim includes an award of punitive or exemplary damages.
The claim is a result of a criminal act on the part of the public officer, public official or public employee or is the result of clearly demonstrable actual malice.
The public officer, public official or public employee fails or refuses to comply with the procedures set forth herein for the processing of such claims.
Notwithstanding the foregoing, the township shall indemnify any public officer, public official or public employee to the extent that it shall provide the means for such public officer, public official or public employee to defend himself against a claim but such indemnification shall not extend to the payment of such claims, provided that the public officer, public official or public employee complies with the procedures set forth herein for the processing of such claims.
The township may provide for the defense of any public officer, public official or public employee at any time when it is determined by the Committee to be in the best interest of the township to do so, anything to the contrary herein notwithstanding.
Any public officer, public official or public employee shall, within 10 calendar days of receipt of notice by him of the claim, whether such notice is from a notice of tort claim served pursuant to N.J.S.A. 59:8-1 et seq. or by service upon him of any summons, complaint, process, notice, demand or other pleading, deliver the original or a copy thereof to the Clerk.
Upon receipt of the same, the Clerk shall forthwith transmit a copy of the same to the Attorney, who shall review the same and advise the Clerk, the Committee and the public officer, public official or public employee if he (the Attorney) will provide a defense of such claim or if the public officer, public official or public employee should obtain separate representation.
If the Attorney determines to defend the claim himself, the public officer, public official or public employee implicated shall cooperate fully with the Attorney, and the Attorney shall have complete control over the defense of the claim, in consultation with the public officer, public official or public employee and the Committee. The Attorney may decline to provide a defense if he concludes that to do so would create a conflict of interest between the township and the individual. The Attorney may designate an attorney at law to defend the claim in his stead, with the approval of the Committee.
If the Attorney or his designee determines not to defend the claim, the township shall provide for the payment of defense counsel for the public officer, public official or public employee.
The defense herein provided shall include appellate costs only if the Attorney shall determine, in consultation with the Committee, that the best interests of the township will be served by such appeal. In making this determination, the Attorney and Committee shall consider, inter alia, the following factors: the size of the claim, the factual and legal basis therefor as found by the Court, whether or not it was determined that the claim is excluded under § 18-4 hereof, the cost of appeal, the likelihood of success and other relevant policy considerations. An appeal by an unsuccessful claimant shall be defended unless the Attorney and Committee determine that the cost of an appeal substantially outweighs all other public policy considerations.
In the event that a claim is not presented promptly or in the event that the public officer, public official or public employee fails and refuses to cooperate with the Attorney or his designee, the duty to indemnify shall forthwith cease and determine, and the public officer, public official or public employee shall be forthwith notified. Thereafter, the township shall not in any way indemnify the public officer, public official or public employee for either the cost of defense or the payment of the claim unless the Committee shall by resolution determine that the public interest requires indemnification and that such public interest substantially outweighs the public interest inherent in strict compliance with this chapter.
Upon final adjudication of a claim against a public officer, public official or public employee, any claim which is found to be valid and which is not excludable pursuant to the Tort Claims Act, N.J.S.A. 59:1-1 et seq., or the provisions of § 18-4 of this chapter shall be paid by the township as in the case of any valid claim.
If a claim is determined to be partially payable hereunder and partially excluded, that part for which indemnification is provided shall be paid by the township herein set forth but the balance, including any part excludable hereunder, shall not be paid.
Nothing contained herein shall prevent or preclude the township from purchasing liability or other insurance to indemnify the township or its public officers, public officials and public employees, or some of them, from liability for claims presented. If such insurance is purchased, the provisions of this chapter shall nonetheless apply to all circumstances not within the scope of such insurance. The Clerk or Attorney may, in the event that insurance coverage is or may be available for any such claims, direct that the claim or a notice thereof be transmitted to the township's insurer, but such transmittal shall not operate to affect the provisions of this chapter or the requirements thereof.