[HISTORY: Adopted by the Township Committee of the Township of Washington
6-13-1990 by Ord. No. 90-8. Amendments noted where applicable.]
GENERAL REFERENCES
Employee relations — See Ch. 9.
The Township Committee finds and declares that:
A.
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.
B.
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.
C.
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.
D.
N.J.S.A. 59:10-4 specifically empowers the township to
provide such indemnification.
E.
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.
A.
ATTORNEY
CLAIM
CLERK
COMMITTEE
INDEMNIFY
PUBLIC DUTY OR RESPONSIBILITY
PUBLIC EMPLOYEE
PUBLIC OFFICER
PUBLIC OFFICIAL
TOWNSHIP
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.
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.
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.
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.
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.
B.
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.
C.
Any term not otherwise defined herein shall be given
its ordinary denotative meaning.
D.
The term "shall" shall implicate a mandatory obligation,
and the term "may" shall implicate a discretionary power.
E.
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.
A.
The township shall not indemnify a public officer, public
official or public employee when:
(1)
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.
(2)
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.
(3)
The claim includes an award of punitive or exemplary
damages.
(4)
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.
(5)
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.
B.
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.
C.
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.
A.
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.
B.
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.
C.
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.
D.
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.
E.
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.
F.
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.
A.
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.
C.
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.
