[HISTORY: Adopted by the Mayor and Council of the Borough
of Ho-Ho-Kus 3-26-2002 by Ord. No. 850. Amendments noted where
applicable.]
The Borough hereby finds that it is appropriate to provide for
the indemnification and defense of Borough employees, appointees and
officials in accordance with the provisions of N.J.S.A. 59:10-4, and
applicable law, which empowers local public entities to provide for
such indemnification.
As used in this chapter, the following terms shall have the
meanings indicated:
Any official, officer or member of the Borough's agencies,
commissions or Council of the Borough, or employee or servant, whether
or not compensated, full- or part-time, elected, appointed or employed,
who is authorized to perform any act or service; provided, however,
that the term does not include an independent contractor. The term
shall also include persons formerly holding office or employment.
The term "employee" is to be construed liberally in order to effectuate
the purposes of this chapter.
A.
Pursuant to the authority granted by provisions of the New Jersey
Tort Claims Act, N.J.S.A. 59:10-4, and applicable law, the Borough
of Ho-Ho-Kus does hereby authorize and provide to its employees indemnification
in accordance with the indemnification provisions applicable to all
state employees under the New Jersey Tort Claims Act.
B.
The Borough does also hereby authorize indemnification of any person
formerly or presently holding any office, position or employment,
elected or appointed, hereafter referred to as an "employee," in accordance
with the provisions herein.
A.
Except as otherwise provided herein, the Borough shall indemnify
and save harmless any employee from financial loss resulting from
any civil action, suit or proceeding, including a cross action, counterclaim
or a cross complaint, against such employee on account of any act
or omission done in the scope of his/her employment; provided, however,
that the act or failure to act does not arise out of actual fraud,
willful misconduct, actual malice or an intentional wrong.
B.
The Borough shall defray all costs of defending a legal action against
said employee, including attorneys' fees, court costs and expert
or technical witness fees, and any amount paid in settlement thereof
and actually and reasonably incurred in connection therewith, to the
extent permitted by general law. Expenses thus incurred may be paid
in advance of final disposition of the action, but the Borough may,
in its discretion, wait for a final determination before being obligated
to make any payments.
C.
Nothing herein shall authorize the Borough to pay for damages resulting
from the commission of a crime; however, the Borough shall indemnify
and save harmless each employee from financial loss resulting from
any action described above, including punitive or exemplary damages,
if, in the opinion of the governing body, the acts committed by the
employee upon which the damages are based do not constitute actual
fraud, actual malice, willful misconduct or an intentional wrong.
D.
If the Borough employee files a counter action or counterclaim in
the legal proceeding, the Borough shall not be obligated to reimburse
such employee for any attorneys' fees or court costs attributable
to such counter action or counterclaim.
An employee shall not be entitled to indemnification or the
cost of defense under this chapter unless, within 10 days of the time
such employee is served with any summons, order to show cause, complaint,
process, notice, demand or pleading, he/she delivers the same, or
a copy thereof, to the Borough Clerk, who shall then forthwith notify
the Mayor and Council of the pending action; provided, however, that
this time period may be extended for good cause by the affirmative
vote of a majority of the full membership of the governing body.
The Borough may provide any defense required of it under this
chapter through the Borough Attorney or by employing other counsel
as it deems appropriate. Where a conflict of interest may exist, the
public employee may engage his or her own counsel, which counsel shall
be subject to the reasonable satisfaction of the governing body. Such
engagement shall be further subject to an appropriate agreement between
the Borough and the public employee.
Except as otherwise provided in this chapter, whenever the Borough
provides any defense required of it under this chapter, the Borough,
through counsel, may assume exclusive control over the representation
of the public employee, and such employee shall cooperate fully with
the defense.
In the event that a judgment is entered in favor of the public
employee at the trial court level and the adverse party files an appeal
therefrom, the governing body shall be obligated to pay the costs
of counsel beyond the trial court level. In the event that an adverse
judgment is entered against the public employee at the trial court
level and the public employee or adverse party seeks to appeal therefrom,
it shall be within the sole discretion of the governing body to decide
whether to pay for the costs of counsel beyond the trial court level.
A.
The governing body may disclaim liability for coverage or defense
costs if any of the following conditions shall occur:
(1)
The employee is covered by insurance for the cost of his/her defense
and indemnification.
(2)
The legal proceeding is instigated or brought by the employee.
(3)
The legal proceeding is instigated or brought by the municipality
against the employee.
(4)
Any of the acts or omissions complained of were, in the opinion of
the governing body, the product of actual fraud, actual malice, willful
misconduct or an intentional wrong.
(5)
The legal proceeding involves a question concerning the election
laws.
(6)
The legal proceeding involves a claim for misfeasance or malfeasance
in office or a claim of fraud, theft or misappropriation of public
funds, and the employee is found liable for the charge.
(7)
The legal proceeding is a criminal or disciplinary action.
(8)
The legal proceeding involves an act or omission of the employee
which was not within the scope of employment.
B.
The Borough may not disclaim coverage under this chapter if there
shall have been a specific determination by the trier of fact that
the employee's actions or omissions complained of were within
the employee's scope of employment, duties and responsibilities
and, further, that the employee's actions or omissions complained
of did not involve actual fraud, actual malice or willful misconduct.
An employee claiming indemnification under this chapter shall
cooperate fully and in good faith with the Borough and with attorneys,
adjusters, investigators or experts, or technical personnel engaged
by the Borough for the preparation and presentation of a defense to
such action, or the settlement or other disposition thereof, and if
the employee neglects, fails or refuses to cooperate, as herein required,
the governing body, after a hearing on 10 days' written notice
to the employee, and for cause, may declare all rights created under
this chapter for the benefit of such employee to be forfeited and
terminated by the affirmative vote of a majority of the full membership
of the Borough Council.
