[HISTORY: Adopted by the Common Council of
the City of Egg Harbor City 2-26-2004 by Ord. No. 1-2004. Amendments noted where
applicable.]
The Common Council shall by ordinance establish
titles for public employment by the City and salary ranges for City
employees. (Said titles shall conform to the New Jersey Civil Service
Act[1] and regulations promulgated by the New Jersey State Department
of Personnel).
[1]
Editor's Note: See N.J.S.A. 11A:1-1 et seq.
The Common Council shall by resolution adopt
and amend from time to time personnel policies and procedures including
rules concerning the hiring and termination of employees, terms and
conditions of employment, and regulations required to comply with
applicable federal and state employment-related law. The personnel
policies and procedures adopted pursuant to said resolution(s) shall
be applicable to all officials, appointees, employees, prospective
employees, volunteers and independent contractors of the City.
The City Administrator shall be responsible
to implement and enforce the personnel practices adopted by ordinance
or resolution authorized pursuant to this section. If there is a conflict
between said personnel practices and any duly adopted and lawful collective
bargaining agreement, personnel services contract or federal or state
law, the terms and conditions of that contract or law shall prevail.
In all other cases, the practices adopted pursuant to this chapter
shall prevail.
[Added 6-25-2009 by Ord. No. 10A-2009]
A.
CLAIM
EMPLOYEE
INDEMNIFICATION
Definitions. As used in this section, the following terms shall have
the meanings indicated:
Any report, formal or informal, of a demand for compensation
for damages for injuries allegedly caused by an employee as defined
herein. The term shall include, but shall not be limited to, all demands
for damages before any court or agency for bodily injury, property
damage and violation of a civil or constitutional right, including
false arrest, inverse condemnation and causes of action arising under
42 U.S.C. § 1981 et seq.
Any person employed by the City of Egg Harbor, including
elected officials, constitutional officers and their employees, and
volunteers performing services on behalf of the City of Egg Harbor
while actually performing those services. The term does not include
persons or entities performing services under a nonemployment contract
with the City of Egg Harbor.
The cost of defense, which may, at the City's option,
be provided by the City Attorney or pursuant to coverage under any
policy of insurance or by private counsel, and all sums which the
employee would be legally obligated to pay as compensatory damages
or in settlement of any claim against the employee for matters arising
from or related to actions taken in the course of employment with
the City of Egg Harbor, whether the claim is presented during the
period of the employee's employment or thereafter, and shall
include the payment of salary or wages for any employee who, by reason
of an indemnified claim, is absent from his or her work station for
the purpose of attending legal proceedings or other business in connection
therewith and the City of Egg Harbor would otherwise be responsible
for payment of the employee's salary or wages. The term shall
also include all sums which the employee would be legally obligated
to pay in the nature of exemplary or punitive damages in the event
that the Common Council of the City of Egg Harbor shall be of the
opinion, upon the advice of the City Attorney, that the acts committed
by the employee upon which the damages are based did not constitute
actual fraud, actual malice, willful misconduct or an intentional
wrong, pursuant to Chapter 340 of the Laws of 1987 (N.J.S.A. 598:104,
as amended). The determination of a civil court shall not preclude
a finding by council that indemnification is warranted.
B.
Circumstances warranting indemnification. Employees, as defined herein,
will be indemnified, as defined herein, by the City of Egg Harbor,
where it appears to the City Administrator, after preliminary investigation,
that all of the following circumstances exist:
(1)
The act or acts complained of took place during a time when the employee
was actually performing services of behalf of the City of Egg Harbor.
whether or not during formal working hours.
(2)
It reasonably appears that the employee was acting within the scope
of the City of Egg Harbor employment or duties, and in furtherance
thereof, in the performance of the act or acts giving rise to the
claim and the employee so avers.
(3)
The employee has notified his or her department head and the City Administrator, in writing, within seven working days of notice of the claim, enclosing a copy of the claim and all relevant documents. Former employees shall be responsible for notifying the City of Egg Harbor Administrator within seven working days and shall be required to enclose the same documentation as is required of the current employee. The City Administrator shall promptly acknowledge receipt of the claim and notify the City of Egg Harbor of the existence of the claim. The City Administrator shall advise the Common Council of the claim, and after the circumstances underlying the claim have been reviewed by Council, the City Attorney shall advise the employee and department head, where appropriate, as to whether indemnification hereunder will be provided. Upon compliance with the provisions of this section, and subject to the provisions of Subsections C and D of this section, indemnification shall be mandatory.
C.
Circumstances not warranting indemnification. The City Administrator
may determine, after preliminary investigation of the matter and taking
all circumstances into account, that indemnification is not warranted
if:
(1)
The employee, in performing the act complained of, was acting wrongfully
with the intent to injure another;
(2)
The employee was acting for the purpose of personal gain;
(3)
The employee was acting in a manner which violated state or federal
law, including, but not limited to, written policy of the City of
Egg Harbor which the employee was or ought to have been aware; or
(4)
The acts committed by the employee constituted actual fraud, actual malice, willful misconduct or an intentional wrong, and the Common Council elects not to provide indemnification hereunder pursuant to Chapter 340 of the Laws of 1987 (N.J.S.A. 59:10-4, as amended) and Subsection A of this section.
D.
Revocation of indemnification. The decision to indemnify based upon preliminary investigation is not final and binding upon the City of Egg Harbor. Should facts be revealed during the course of handling the claim, whether or not they could have been discovered at an earlier time, that show that the employee was acting in a manner which does not entitle him or her to indemnification for the reasons stated in Subsection C above, the Common Council may revoke the indemnification. Further, should the employee unjustifiably fail or refuse to cooperate in defending the claim, indemnification may be revoked.
E.
Settlement of claims; consent of employee. By accepting indemnification
from the City of Egg Harbor in accordance with this section, the employee
agrees that the City of Egg Harbor may perform such investigations
and enter into such negotiations on the employee's behalf as
the City of Egg Harbor shall deem necessary and proper and may settle
any claims, regardless of whether the City of Egg Harbor actually
feels the allegations are groundless or false. In the event that the
employee refuses to consent to any settlement, the City of Egg Harbor
shall be liable only for that amount for which the City of Egg Harbor
could have settled the claim had the employee consented.
F.
Construal of provisions. This section shall not create, nor shall
it be construed as, a contract of insurance between the City of Egg
Harbor and any employee. The City of Egg Harbor shall not be considered
an insurer or primary insurer for any purpose and shall not by this
section be obligated to settle any claim on an employee's behalf
or to tender its limits of coverage in order to avoid excess liability
on the employee's part.
G.
Complaints involving criminal or motor vehicle offenses. Where an
employee has been charged with a criminal offense or an offense under
the Motor Vehicle Law of the State of New Jersey, it may be that,
regardless of the outcome of the charge, disciplinary action will
be taken against the employee based on the underlying facts. Accordingly,
representation will not be provided by the City Attorney unless there
is a specific provision to the contrary in the applicable collective
bargaining agreement. Employees without such a contract provision
who desire counsel will be required to retain their own attorney.
H.
Applicability. This section shall apply to all matters which have
not been finally resolved at the date of enactment hereof, regardless
of whether or not the acts for which damages are sought occurred before
passage of this section.
I.
To the extent that the terms of this section conflict with any indemnification
or obligations to provide defense provisions of employee contracts
or collective bargaining agreements to which the City is a party,
the terms of said contracts or agreements shall control and supercede
the provisions of this section.
