[Adopted 6-4-2008 by Ord. No. 10-2008]
As used in this article, the following terms shall have the meanings indicated:
DEFENSE
The means by which a public employee may respond to any suit, allegation, or cause of action. The Township of Pemberton shall provide for the defense of any action, suit or proceeding, whether civil, criminal, administrative, or investigative, including a cross action, counterclaim, or cross complaint against any public employee because of any act or omission of such public employee in the scope of his or her employment, and shall defray all costs of defending such action, including reasonable counsel fees and expenses, together with costs of appeal, if any, excepting actions, suits or proceedings brought by the Township of Pemberton against such public employee. Expressly exempted from this chapter are any charges, allegations, or actions of any nature asserted by the Township of Pemberton against its own public employee.
INDEMNIFICATION
To secure against future loss or damage, or to provide compensation for or repair loss or damage already suffered; to insure; to save harmless.
PUBLIC EMPLOYEE
Any employee of the Township of Pemberton, any elected or appointed official, or any officer, employee, or servant, whether or not compensated, who is authorized to perform any act or service for the Township of Pemberton. The term "public employee" shall also include persons formerly holding office or employment, provided that the events giving rise to a cause of action or claim hereunder conform to the requirements herein established.
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 public employee holding or formerly holding any office, position, or employment with the Township of Pemberton, 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 Township 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 Township Attorney, or another attorney selected by the Mayor, with the advice and consent of the Township Council, shall represent the Township official or employee.
The Township shall not defray the costs of defending any criminal action against any public employee, except as may be authorized by state statute or other municipal ordinance or resolution of the Township of Pemberton, and in those circumstances, the responsibility for defraying the costs of defending such public employee shall be applicable only when such criminal proceedings shall have been dismissed or result in a final disposition in favor of the public employee. However, should the Township determine that there is good cause, arising out of the incident or related incidents of the criminal prosecution, to dismiss the public employee, the Township will not reimburse the public employee for legal defense and/or the costs of defending the suit, even though criminal proceedings against the public employee may be dismissed or the public employee is found not guilty.
A. 
The obligation of the Township of Pemberton to defend and indemnify its public employees for acts or omissions arising out of, or during the course of, the performance of the duties of said public employee shall be limited to those circumstances under which the Township itself would be liable for the acts of its public employees under the doctrine of respondent superior, except that the Township shall defend any claims or causes of action for alleged violations of a person's federal civil rights by a public employee, provided that the Township shall not have concluded that such act or omission giving rise to a claim of a federal civil rights violation was outside the scope of the responsibilities of said public employee.
B. 
The Township shall not defend and save harmless any public 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. 
The Township shall not be responsible for the defense or indemnification of any public employee of the Township when the Township 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 Township and the public employee.
(4) 
The public employee failed to deliver to the Township Administrator, within 10 calendar days after the time he or she is served, the original or copy of any summons, complaint, process, notice, demand, or pleading.
(5) 
The public employee has failed to cooperate fully with the defense.
Whenever the Township provides any defense required of it under this chapter, the Township, 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 Township is required to provide a defense under this chapter, the Township shall pay or shall reimburse the public employee for:
(1) 
Any bona fide settlement agreements entered into by the public employee which is approved by the Mayor and the Township Council.
(2) 
Any judgments entered against the public employee which relate to any act or omission of such public employee in the scope of his or her employment.
(3) 
If the Township has failed to provide such required defense, all costs of defending the action, including reasonable counsel fees and expenses, together with costs of any appeal.
B. 
In addition, in any case where the Township would be required to provide a defense under this chapter except for the fact that such defense is provided for by insurance, the Township shall provide indemnification as aforesaid, but only to the extent not covered by insurance.
Nothing in this chapter shall authorize the Township to pay for punitive or exemplary damages or damages resulting from the commission of a crime.