[HISTORY: Adopted by the Township Council of the Township of Clark 6-16-2003 by Ord. No. 03-21 (Sec. 2-54 of the 2002 Revised General Ordinances). Amendments noted where applicable.]
Except as hereinafter provided, the municipality shall, upon the request of any present or former official, employee or appointee of the municipality, provide for indemnification and legal defense of any civil action brought against said person or persons arising from an act or omission falling within the scope of their public duties.
For purposes of this section, the municipality's duty and authority to defend and indemnify shall extend to a cross-claim or counterclaim against said person.
The terms of this section and the definitions of "official," "employee" and "appointee" are to be construed liberally in order to effectuate the purposes of this section, except that these terms shall not mean:
Any person who is not a natural person;
Any person while providing goods or services of any kind under any contract with the municipality;
Any person while providing legal or engineering services for compensation, unless said person is a full- or part-time employee of the municipality; and
Any person who, as a condition of his or her appointment or contract, is required to indemnify and defend the municipality and/or secure insurance.
The municipality shall not indemnify any person against the payment of punitive damages, penalties, or fines, but may provide for the legal defense of such claims in accord with the standards set forth herein.
The municipality shall provide for the defense of and indemnify the defendant or defendants in a civil action if the person or persons involved acted or failed to act in a matter in which the municipality has or had an interest; acted or failed to act in the discharge of a duty imposed or authorized by law; and acted or failed to take action in good faith.
The municipality may refuse to provide for the defense and indemnification of any civil action referred to herein if the Council determines that the act or omission did not occur within the scope of a duly authorized or imposed bylaw; the act or failure to act was the result of actual fraud, willful misconduct or actual malice of the person requesting defense and indemnification; or the defense of the action or proceeding by the municipality would create a conflict of interest between the municipality and the person or persons involved.
In any other action or proceeding, including criminal proceedings, the municipality may provide for the defense of a present or former official, employee or appointee if the Council concludes that such representation is in the best interest of the municipality and that the person to be defended acted or failed to act in accord with the standards set forth in § 22-2 of this chapter.
Whenever the municipality provides for the defense of any action set forth herein, as a condition of such defense, the municipality may assume exclusive control over the representation of such persons defended, and such person shall cooperate fully with the municipality. Where such person defended hereunder may be subject to causes of action which, if proven, could subject said person to punitive damages, penalties, or fines, said persons shall be entitled to have independent legal counsel represent them as to those claims in any such proceeding, at said person's own cost and expense, in which circumstance counsel appointed by the Township and the person's private counsel shall jointly have control over the employee's representation as their respective interest may require.
The municipality may provide for the defense pursuant to this chapter by authorizing the Municipal Attorney to act on behalf of the person being defended or by employing other counsel for this purpose or by asserting the municipality's right under any appropriate insurance policy that requires the insurer to provide defense.