[HISTORY: Adopted by the Mayor and Council
of the Borough of Emerson 10-8-2002 by Ord. No. 1215. Amendments noted where applicable.]
Pursuant to N.J.S.A. 59:10-1 et seq., indemnification
is provided for defense costs and payment of a judgment rendered against
a municipal/state employee for actions or failures to act while in
the scope of his/her employment. Pursuant to N.J.S.A. 59:10-4, local
public entities are empowered to indemnify local public employees
and officials consistent with the provisions of the New Jersey Tort
Claims Act. The Borough Council deems it in the best interest of the
Borough to indemnify Borough officials, officers and employees consistent
with the New Jersey Tort Claims Act.[1]
[1]
Editor's Note: See N.J.S.A. 59:1-1 et seq.
For the purpose of this chapter. unless the
context clearly indicates a different meaning, the following words
and phrases shall have the meanings set forth:
Coverage afforded by insurance policies of any and every
kind, whether the premium be paid by the Borough, the municipal official
or someone on his behalf, including, without limitation, coverage
provided by and through a joint insurance fund (JIF) and/or the municipal
excess liability (MEL) policies, or other like arrangements and undertakings.
Any person presently or at any time in the future employed,
elected or appointed to any public office, board or commission of
the Borough of Emerson, whether full- or part-time, whether or not
compensated for the appointed or elected position. It shall not include
officials, officers and employees who are appointed, elected or employed
by the Emerson Borough Board of Education. It shall include all other
boards, commissions and authorities which are subdivisions of municipal
government. It shall also mean any person employed or retained by
the Borough for any office, commission or board thereof, whether or
not said person serves in a paid or unpaid capacity; provided, however,
that these terms do not include independent contractors employed by
the Borough.
[Amended 9-23-2003 by Ord. No. 1241]
It is the intent and purpose of this chapter
to provide for the defense of actions against and the indemnification
of public officials, officers and employees for civil actions as permitted
by N.J.S.A. 59:10-1 et seq., as permitted by this chapter. This chapter
shall be liberally construed to provide the fullest defense and indemnification
allowed by law.
[Amended 9-23-2003 by Ord. No. 1241; at
time of adoption of Code (see Ch. 1, General Provisions, Art. I)]
Whenever an official, officer or employee of
the Borough of Emerson is a named defendant in any civil action or
civil legal proceeding arising out of or incidental to the performance
of his or her duties as an official, officer or employee of the Borough,
the Borough shall provide the official, officer or employee with the
necessary and reasonable defense and shall hold such official, officer
or employee harmless and indemnify him or her from the payment of
any settlement or judgment resulting from the proceedings, except
as otherwise set forth in this chapter. The Borough shall indemnify
officials, officers and employees from all civil claims, including
defense costs, if and only if the person establishes that the act
or omission upon which the claim or judgment was based occurred within
the scope of his or her employment as an official, officer or employee
of the Borough and the person establishes that he or she did not act
or fail to act because of actual fraud, actual malice or willful conduct.
The following sets forth situations in which the Borough shall not
have a duty to defend or indemnify:
A.
Where the action has been initiated or brought by
the municipality itself or any board, commission or authority established
as a subdivision of municipal government against said official, officer
or employee.
B.
Where the official, officer or employee has been specifically
found by a final judgment rendered by a court or other competent tribunal
in the proceedings to have acted with actual fraud, actual malice
or willful misconduct or to have acted or failed to act within the
scope of employment.
C.
Where the official, officer or employee is found by
a final judgment rendered by a court or other competent tribunal to
have violated any provision of the Borough's Code of Ethics or any
code of ethics existing by and pursuant to the laws of the State of
New Jersey in the course of conduct that led to or is the subject
of the litigation.
D.
This chapter and the indemnification provided herein
shall not apply where the basis for a claim is an act or omission
which occurred on or before October 8, 2002, the date of adoption
of Ordinance 1215.
Wherever an official, officer or employee of
the Borough of Emerson is a defendant in any criminal action or legal
proceeding arising out of or incidental to the performance of his
or her duties and in the event that said action or legal proceeding
is dismissed or finally determined in favor of the official, officer
or employee, he or she shall be entitled to be reimbursed for the
reasonable defense costs. This shall only include any criminal action
instituted against an official, officer or employee based upon an
act or omission of that official, officer or employee arising out
of and directly related to the lawful exercise of his or her official
duty or under color of his authority and that action is dismissed
or results in a final disposition in favor of that official, officer
or employee.
The provisions of a defense and indemnification,
as set forth in the above sections of this chapter, shall justifiably
be refused by the municipality if it is the determination of the governing
body that:
A.
The act or omission alleged was not within the scope
of the person's employment or official duties;
B.
The act or failure to act alleged was because of actual
fraud, willful misconduct or actual malice or intentional wrongdoing;
C.
There exists policies of insurance, either obtained
by the Borough or by any other, by virtue of which the official, officer
or employee is entitled to a defense of the action in question from
any insurer, including coverage pursuant to the JIF or MEL;
D.
It is not deemed legal and appropriate by the Borough
Council pursuant to N.J.S.A. 59:10-1 et. seq.;
E.
The public official, officer or employee has failed
to cooperate fully with the defense provided by the municipality;
F.
Where the legal proceeding involves questions concerning
election laws; and
G.
The official, officer or employee fails to notify
the Borough in a prompt manner and as soon as possible as to any action
threatened against him or her.
A.
The Borough may provide any defense required of it
pursuant to the within chapter through an attorney from its own staff
or by employing other counsel selected by the Borough. It shall be
the Borough's sole option to select counsel and, wherever permissible
by law and/or canons of professional ethics controlling attorney's
practice of law, the Borough may assume exclusive control of the representation
of said official, officer or employee.
B.
A municipal official, officer or employee shall not
be entitled to indemnification or reimbursement pursuant to this chapter
unless within 15 calendar days of the time he is served with a summons,
complaint, process notice, demand or other pleading he delivered the
original or a copy thereof to the Borough Clerk with a request to
defend and indemnify. Notwithstanding the foregoing, a present or
former municipal officer, employee or official who is a party to any
pending litigation or the subject of a tort claim notice presently
filed prior to the effective date of this enactment shall be covered
and included in the coverage herein without further notice to the
Borough or other actions being taken. It is the intention to cover
and indemnify those officials, officers or employees from actions
or claims which have been brought and are pending, are being defended
by the Joint Insurance Fund or are merely threatened. The municipal
official, officer or employee shall be obligated to cooperate to the
fullest extent possible with the Borough in the conduct of the defense.
Wherever competent and disinterested legal counsel is available to
the Borough through any insurance coverage, the municipal official,
officer or employee shall be obligated to be represented by such counsel.
If the Borough wishes to use the Borough Municipal Attorney or the
attorney for any board or council of the Borough to defend the claim,
the municipal official, officer or employee shall be obligated to
be represented by that attorney unless there is a conflict of interest.
The refusal of the municipal official, officer or employee to cooperate
with the Borough shall terminate the Borough's obligation to provide
a defense and/or indemnity or to otherwise reimburse any municipal
official, officer or employee.
If the legal proceeding is terminated by an
agreement among the parties, then the Borough shall not be obligated
to reimburse the municipal official, officer or employee unless the
Borough, by and through the governing body and/or by court order,
approves the settlement agreement.
Counsel fees to be paid to outside counsel,
other than the Municipal Solicitor or the solicitor for any board
or commission, for services rendered in connection with a claim subject
to this chapter, shall be reasonable and shall be established by the
governing body through resolution prior to the retention of such counsel.
The Borough may reimburse a municipal official, officer or employee
for a portion of any expense incurred prior to the final decision
in the legal proceeding at the Borough's sole discretion. The Borough
shall be entitled to wait for a final determination before making
a determination to reimburse defense costs and/or honor indemnity.
To the extent that N.J.S.A. 40A:14-155 provides
broader indemnification to members of the municipality's Police Department,
that statute shall apply.
If the municipal official, officer or employee
files a counteraction, counterclaim or asserts any affirmative claims
in the legal proceeding, the municipality shall not be obligated to
reimburse him for any attorney's fees or costs attributed to said
counteraction, counterclaim or affirmative cause of action.
Nothing in this chapter shall authorize or require
the Borough to pay for punitive or exemplary damages or damages resulting
from the commission of a crime.
This chapter shall take effect upon final passage
and publication according to law, and it shall apply to any and all
claims and suits pending as of or brought after the effective date
of this chapter, whether or not said claim or suit relates to conduct
or omissions occurring before the effective date of this chapter.
