[HISTORY: Adopted by the Mayor and Council of the Borough of Westville 12-8-1999 (Ch. 9 of the 1974 Code). Amendments noted where applicable.]
The Mayor and Council for the Borough of Westville finds as follows:
The State of New Jersey, through the passage of the Tort Claims Act, as amended and supplemented from time to time (N.J.S.A. 59:1-1 et seq.), has determined the circumstances under which claims may be made against public entities and their officials, employees and servants.
Said Tort Claims Act also specifies under what circumstances any public entity may defend and indemnify its officials, employees and servants.
The Mayor and Council for the Borough of Westville hereby provide, under certain circumstances, for the defense and indemnification of its officers, employees and servants in the good-faith performance of their duties and responsibilities.
Such defense and indemnification are especially appropriate for members of appointed boards who serve the Borough of Westville without monetary compensation.
The indemnification of municipal employees is also expressly designed to avoid a conflict between the employer and the employee when claims are lodged. The Supreme Court for the State of New Jersey has noted that, because the law does not require, but does permit, indemnification of local public entity employees, conflicts of interest may arise in the absence of such indemnification where an entity and an employee are both sued for compensatory damages in, for example, a civil rights action and both employ the same attorney to defend. Likewise, the Court pointed out such conflict could arise because the employee is liable for punitive damage and the entity is not. (See Petition for Review of Opinion 552, 102 N.J. 194.) Accordingly, this indemnification policy is also intended to increase the efficiency and reduce the cost of defending the Borough of Westville and its employees and agents in the event of such actions.
As used in this chapter, the following terms shall have the meanings indicated:
- Refers to the means by which such public employee may respond to any suit, allegation, or cause of action. The Borough of Westville shall provide 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 by that employee in the scope of their 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 Borough of Westville against any such employee. Expressly exempted from this chapter providing defense and indemnification to public employees of the Borough of Westville are any charges, allegations, or actions of whatever nature asserted by the Borough of Westville against its own public employees.
- To secure against loss or damage which may occur in the future, or to provide compensation for or to repair loss or damage already suffered; to insure; to save harmless.
- PUBLIC EMPLOYEE
- Includes any employee of the Borough of Westville and shall include 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 Borough of Westville. 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.
Whenever a civil action should be brought against any person holding an office, position or employment with the Borough of Westville 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 Borough of Westville shall provide payment of that portion of any exemplary or punitive damage award not otherwise covered by a policy of insurance. Note, however, that the Borough of Westville does not, by indemnifying its employees against punitive damage, indirectly or directly waive its own immunity against such claims. (See T & M Homes. Inc., vs. Pemberton Twp. 190 N.J. Super. 637.)
Whenever a civil action shall be brought against any person holding an office, position or employment with the Borough of Westville 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 Borough of Westville shall provide payment of that portion of any costs of defense of said action not covered by the Borough's policy of insurance. Whenever any insurance policy whose purpose is to provide the defense and indemnification of the Borough of Westville or its public employees is in dispute, the Borough of Westville will stand in the place of the insurance carrier, subject to all rights of subrogation, to provide for the defense and indemnification of its employees as specified herein. Said public employee has an affirmative duty, to be eligible for said defense and indemnification, to cooperate with the Borough of Westville in any and all of its efforts to resolve any disputed insurance coverage.
By common law and this express provision to this chapter, the Borough of Westville's authority to indemnify is limited to acts by public employees that are within the scope of their employment and which are not criminal, fraudulent, malicious or instances of willful misconduct. Additionally, the Borough of Westville will not provide the means for defense nor indemnify any public employee in those instances where the Borough of Westville has initiated the charges and action. In the event any such employee is charged with criminal charges and he or she is later acquitted, any application to recover the costs of their defense is expressly conditioned upon the ultimate determination of administrative charges which may or may not arise out of the same conduct or behavior. Notwithstanding all of the above, in the event the Borough of Westville elects to assert such administrative charges and even if the employee should thereafter prevail, all such claims for reimbursement for costs of defense will be subjected to the controlling statutory and common law as opposed to this chapter. (Note: The "may or may not," clause addresses those instances wherein an officer is suspended on unrelated charges, but the proceeding is tolled by a parallel criminal action.)