[Adopted 3-9-1987 by Ord. No. 1580]
Unless a context indicates otherwise, the words
and phrases in this section shall have the following meanings:
Any officer, employee, servant, as well as any member of
a Board, commission, committee, division or department of the Township,
including elected or appointed officials and persons acting on behalf
or in service of the Township in any official capacity, whether with
or without compensation. Employee does not include an independent
contractor under contract with the Township who is providing services
to the Township but who does not serve in an official capacity. Employee
does include former employees for acts and omissions within the scope
of their employment during their former employment with the Township.
The Township of Whitehall, a Home Rule Charter municipality
situate in Lehigh County, Pennsylvania.
As a condition of service or employment with
the Township, the Township shall provide an employee, subject to the
conditions and requirements of this section and notwithstanding the
fact that such employee may have concluded service or employment with
the Township, such defense as may be reasonably necessary to defend
any claim, civil action or proceeding filed against such employee,
in his or her official or individual capacity or both, on account
of an act or omission in the scope of his or her employment as an
employee of the Township.
A.
The Township may provide for a defense by the Township
Solicitor or by employing other counsel for this purpose or by purchasing
insurance which requires that the insurer provide the defense. The
Township has no right to recover such expenses from the employee defended,
except as otherwise provided herein.
B.
The Township may refuse to provide for the defense
of an action against an employee if the Township determines that:
C.
The provisions of this section shall be applicable,
provided that the following conditions are met:
(1)
The employee shall, in writing, request the Township
to provide for the defense of the employee within 15 days after service
of any claim, demand, notice or summons or other process upon the
employee. Such written request shall be filed together with the claim,
demand, notice or summons or other process with the Mayor. The Township,
in its discretion, may provide requested defense for any of its employees
who fail to make a request within the time prescribed by this subsection.
[Amended 6-8-2009 by Ord. No. 2776, approved 11-3-2009]
(2)
In addition to the notice provided in Subsection C(1), the employee shall, as soon as practical, give further written notice, identifying the officers or employees involved, all information known to the employee involved, all information known to the employee with respect to the date, time, place and circumstances surrounding the incident or conduct giving rise to the claim or proceedings, as well as the names and addresses of all person allegedly injured or otherwise damaged thereby and the names and addresses of all witnesses.
(3)
The employee shall cooperate with the Township Solicitor
or other attorney designated by the Township and employed for the
provision of defense and, upon request, assist in making settlements
of any suits and enforcing any claim or any right of contribution
or indemnity against any person or organization who may be liable
to the Township because of any damage or claim of loss arising from
said incident or cause of conduct.
(4)
Such employee shall attend interviews, depositions,
hearings and trials and shall assist in securing and giving evidence
and obtaining attendance of witnesses.
(5)
Such employee shall not accept nor voluntarily make
any payment, assume any obligation, or incur any expense, other than
for first aid, to others at the time of any incident or course of
conduct rise to any such claim, loss or damage.
If legal representation of an employee is undertaken
by the Township, all conditions of representation are met and a judgment
is entered against the employee or a settlement made, the Township
shall pay such judgment or settlement, provided that the Township
may, at its discretion, appeal as necessary such judgment. Notwithstanding
the provisions of this subsection, the Township shall not be liable
for any punitive or exemplary damages against an employee unless the
Township, in its discretion, shall determine such damages shall be
paid by the Township, nor for the payment of any costs, judgments
or settlements which are paid through an applicable contractor policy
of insurance.
In the event that an employee fails or refuses
to comply with any of the conditions of this section or cooperate
with counsel employed by Township, then all the provisions of this
section shall be inapplicable and have no force or effect with respect
to any such claim or litigation. Nothing herein stated shall preclude
an employee from providing his or her own representation with regard
to any claim or litigation.
If the Township determines that an employee
does not come within the provisions of this section and thus fails
or refuses to provide an employee with a defense and a court of competent
jurisdiction later determines that such a claim does come within the
provisions of this section, then the Township shall pay any judgment
rendered against the employee and reasonable costs and fees incurred
by the employee in defending against the claim. The Township shall
additionally pay any attorney's fees incurred in obtaining the determination
that such claim is covered by the provisions of this section. Nothing
in this section shall be construed to deprive an employee of the right
to petition a court of competent jurisdiction to compel the Township
to perform the dues imposed by this section.
If the Township determines that a claim against
an employee does come within the provisions of this section and if
the employee fails to cooperate in good faith in the defense of the
claim or action or if a court of competent jurisdiction later finds
that such claim does not come within the provisions of this section,
then the Township shall be reimbursed for any payments made by it
for any judgment, or portion thereof, and costs or fees incurred by
or on behalf of the employee's defense and the Township shall also
be reimbursed for costs or expenses incurred in obtaining the determination
that such claim is not covered by the provisions of this section.
A.
Nothing contained in this section shall be construed
to modify or amend any provision of any policy of insurance or any
employee thereof as a named insured. In the event of any conflict
between this section and the provisions of any such policy of insurance,
the policy provisions shall be controlling; provided, however, that
nothing contained in this section shall be deemed to limit or restrict
any employee's right to full coverage pursuant to this section, it
being the intent of this section to provide complete coverage outside
and beyond insurance policies which may be in effect, while not compromising
the terms and conditions of such policies by any conflicting provisions
contained in this section.
B.
Nothing in this section shall be additionally construed
as abrogating or waiving any limitation of liability presently or
hereinafter made applicable to the Township or its employees which
would otherwise be applicable in any action or proceeding to which
this section would apply.
The provisions of this section shall apply to
any pending claim or lawsuit against an employee or any such claim
or lawsuit hereafter filed, irrespective of the date of the events
or circumstances which are the basis of such claim or lawsuit. Provided,
however, that in any pending claim, action or proceeding for which
the Township is currently providing defense for an employee, that
such employee shall not be required to provide a written request for
the provision of defense.
