[HISTORY: Adopted by the Township Committee of the Township
of Mannington 5-7-2009 by Ord. No. 09-03.[1] Amendments noted where applicable.]
GENERAL REFERENCES
Officers and employees — See Ch. 89.
[1]
Editor's Note: This ordinance also provided that its
adoption shall not prevent or bar the continuance or institution of
any proceedings for the offenses heretofore committed in violation
of any existing ordinance of the Township.
For the purposes of this chapter, unless the context clearly
indicates a different meaning, the following terms shall have the
meanings indicated:
A present or former municipal employee, appointed official,
elected official, or member of the various boards, agencies and commissions
of the Township of Mannington, whether full or part time, appointed,
elected or hired, including any person providing professional services
to the Township of Mannington or its various boards, agencies and
commissions pursuant to a professional services contract, unless otherwise
expressly provided in such contract.
Pursuant to the provisions of N.J.S.A. 59:10-4 and the provisions
of this chapter, the Township of Mannington is authorized to provide
for the defense of actions brought against its municipal officials,
including actions brought prior to the adoption of this chapter, and
shall indemnify such officials to the extent permissible by law and
shall save harmless and protect such persons from financial loss resulting
from litigation. Such indemnification shall arise out of any action
or legal proceeding of a noncriminal nature directly related, or incidental
to, the performance of the duties of the position or office held by
such municipal official, except for actions brought by the Township
against the municipal official or by the municipal official against
the Township. The Township may indemnify a municipal official for
exemplary or punitive damages resulting from the official's civil
violation of state or federal laws, if, in the opinion of the Mannington
Township Committee, the acts committed by the official upon which
damages are based did not constitute actual fraud, actual malice,
willful misconduct or an intentional wrong. The Township Committee
shall place on record the factual basis and reasoning for its determination
to provide or deny defense and/or indemnification, and a statement
as to why the allegations are or are not directly related or incidental
to the official's official duties.
The Township shall not reimburse the cost of defending any criminal
action against any municipal official except as may be authorized
by state statute or other municipal ordinance or resolution of the
Township Committee, and in those circumstances, the responsibility
for reimbursing the cost of defending such official shall be applicable
only when such criminal proceeding shall have been dismissed or results
in a final disposition in favor of the municipal official. However,
should the Township Committee determine that there is just cause to
dismiss or otherwise discipline the official arising out of the incident(s)
giving rise to the criminal prosecution, the Township will not reimburse
the municipal official for legal defense and costs in defending this
suit, even though criminal proceedings against the official may be
dismissed or the official found not guilty. The Township Committee
shall place on record the factual basis and reasoning for its determination
to provide or deny defense reimbursement, and a statement as to why
the allegations are or are not directly related or incidental to the
official's official duties.
A municipal official shall not be entitled to indemnification
or defense pursuant to this chapter unless within 20 calendar days
following the time such official is served with any summons, complaint,
pleading, or statutorily required notice, the official delivers the
original or a copy thereof to the Township Clerk, although the Township
may elect to provide indemnification or defense in any instance regardless
of whether such delivery requirement is satisfied. The municipal official
shall be obliged to cooperate reasonably with the Township in the
conduct of the official's defense. Whenever qualified legal counsel
is representing the Township in the same action, or is otherwise available
to and selected by the Township for defense of the municipal official,
whether or not provided to the Township through any Township insurance
coverage, the municipal official shall be obliged to be represented
by such counsel unless there is a conflict of interest. If the Township
wishes to use the Township Solicitor or the attorney for any board,
committee or commission of the Township to defend that action, the
municipal official shall be obligated to be represented by that attorney
unless there is a conflict of interest. The Township may elect to
terminate its defense of the municipal official if the municipal official
refuses to cooperate reasonably with the Township.
A.
Except as otherwise provided in this chapter, the Township shall
provide for a municipal official's defense in all instances where
the Township is providing indemnification of the municipal official,
and in any other instance where the Township Committee determines
that the provision of such defense is in the best interest of the
Township. The Township Committee may provide a defense by:
(1)
Hiring or designating an attorney of the Township's choice to represent the municipal official according to the provisions of § 39-4, above; or
(2)
Paying for the municipal official's reasonable attorney's
fees and costs incurred in connection with defense by the municipal
official's choice of attorney according to terms that are mutually
agreed upon between the Township and the official's attorney.
B.
A resolution shall be adopted appointing counsel for the defense
and authorizing payment of counsel fees and costs.
A.
The Township shall not be obligated to provide or pay for a municipal
official's defense in the following instances:
(1)
Where the act or omission complained of was not within the scope
of employment or authority;
(2)
Where the act or omission complained of was because of actual fraud,
willful misconduct or actual malice;
(3)
Where the action is brought by the Township against the municipal
official;
(4)
Where the action is brought against the Township by the municipal
official; or
(5)
The municipal official has failed to reasonably cooperate with the
defense.
B.
If any legal proceeding of the sort referred to in Subsection A(1) or (2) shall be dismissed or finally determined in favor of the municipal official, the official shall be reimbursed for the expense of the defense if it is later determined that the act or omission was within the scope of employment or authority and not because of actual fraud, willful misconduct or actual malice. The Township Committee shall place on record the factual basis and reasoning for its determination to provide or deny defense and/or indemnification, including a statement as to why any of the above-listed exceptions apply.
The amount the Township is obliged to pay for the municipal
official's defense fees and costs and indemnification shall be
reduced by any insurance proceeds or other payments received by the
municipal official in connection with the action against the official,
including any money received by the official in any counteraction
against the person or persons bringing the action against the official.
A legal proceeding against the municipal official for which
defense and indemnification are being provided pursuant to this chapter
may not be terminated by settlement unless the Township approves the
settlement agreement.
If the municipal official files a counterclaim or crossclaim
in the legal proceedings, the Township shall not be obligated to pay
for any attorney fees or court costs attributable to such.
This chapter shall take effect upon final passage and publication
according to law. Any legal proceeding which may be covered by this
chapter which has not been reduced to a final judgment as of the date
of passage shall be covered by the terms of this chapter. All prior
decisions to indemnify or defend municipal officials in actions brought
prior to the adoption of this chapter are hereby confirmed and ratified.
