As used in this article, the following terms
shall have the meanings indicated:
EMPLOYEE
Any officer or employee, whether or not compensated, or part-time
individual member or appointed boards and committees and elected officials,
who are authorized to perform any act or service; provided, however,
that the term does not include an independent contractor.
The Township shall provide for the defense of
any civil or criminal actions brought against a public employee for
any act directly related to the lawful exercise of official authority
in the furtherance of his or her official duties, and this obligation
shall extend to any cross-action, counterclaims or cross-complaint
against such employee.
The provisions of this article shall not be
applicable when the Township Committee determines that:
A. The act or omission was not directly related to the
lawful exercise of official authority in the furtherance of his or
her official duties.
B. The act or failure to act was because of actual fraud,
willful misconduct or actual malice.
C. The defense of the action or proceeding is provided
for by an insurance policy or policies, whether obtained by the Township
or by any other person.
D. The public employee failed to deliver to the Township
Clerk, within 10 calendar days after the time he or she was served
with the summons, complaint, process, notice, demand or pleading,
the original or a copy of the same.
E. The public employee has failed to cooperate fully
with the defense.
F. The action is a disciplinary proceeding instituted
against the employee by the Township or is a criminal proceeding instituted
as a result of a complaint on behalf of the Township. If, however,
any such disciplinary or criminal proceeding instituted by or on behalf
of the Township is dismissed or finally determined in favor of the
employee, the employee shall be reimbursed for the expense of his
or her defense.
The Township may provide any defense required
of it under this article through the Township Attorney or through
the retention of another attorney. The cost of retention of an outside
attorney shall be provided when the defense of the action or proceeding
creates a conflict of interest between the Township and the public
employee.
A. When the Township provides any defense required of
it under this article through the Township Attorney, the Township
may assume exclusive control over the representation of the public
employee, and such employee shall cooperate fully with the defense.
B. The Township Committee may approve the retention of
an outside attorney in accordance with the following conditions:
(1) The employee does not have the right to an attorney
of his or her choice at Township expense. However, the Township Committee
may approve of an attorney requested by the employee.
(2) The attorney retained by the Township shall provide
a written retainer agreement and shall submit an affidavit of services
rendered prior to payment.
(3) Nothing in this section shall prevent an employee
from retaining an attorney of the employee's choice at his or her
own expense, without reimbursement from the Township.
C. Township Attorney responsibilities; possible conflicts.
(1) When the outside attorney is retained, the Township
Attorney shall be directly involved with the public employee's attorney
concerning any recommendation for settlement of a civil lawsuit. The
Township Attorney shall then present any recommendation of settlement,
which must be in the best interest of the Township, to the Township
Committee for its approval.
(2) Where a possible conflict exists between the Township
and the public employee, acting within the scope of his official Township
duties, and where both are named as parties in the same civil lawsuit,
the Township Attorney may decline any involvement in the matter.
(3) In circumstances involving litigation or other legal
proceedings between two public employees qualifying for the privileges
granted herein, the Township Attorney will not be required to represent
or otherwise participate on behalf of either party.