The Harding Township Committee hereby finds
that it is appropriate to provide for the defense and indemnification
of Township officials, employees and appointees consistent with the
provisions of N.J.S.A. 59:10-1 et seq., which empowers local public
entities to provide for such defense and indemnification.
As used in this article, the following terms
shall have the meaning indicated:
TOWNSHIP OFFICIAL, EMPLOYEE OR APPOINTEE
Each person presently or formerly holding any Township office,
position or employment, elective or appointive, full-time or part-time,
whether or not compensated by fixed salary or hourly rate, and including
members of the various boards, commissions or agencies of the Township.
The terms of this article and the definition of official, employee
and appointee are to be construed liberally in order to effectuate
the purposes of this article, except that these terms shall not include
any entity which is not a natural person; any person while providing
goods or services of any kind under any contract with the Township
except an employment contract; any person while providing legal, engineering,
professional or extraordinary unspecifiable services for compensation,
unless said person is a full-time employee of the Township; and any
person who as a condition of his or her appointment or contract is
required to indemnify and defend the Township and/or secure insurance.
Except as otherwise provided in this article,
the Township of Harding shall, upon the request of any present or
former official, employee or appointee of the Township, provide, out
of public funds, 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. The indemnification
of such officials, employees and appointees shall be for compensatory
damages or any settlement approved by the Township Committee. The
defense and indemnification shall extend to a cross-action, counterclaim
or cross-complaint against a Township official, employee or appointee.
The Township shall provide for defense of and indemnify any present
or former official, employee or appointee of the Township who becomes
a defendant in a civil action if the person or persons involved acted
or failed to act in a matter in which the Township 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 obligation
of the Township to defend and indemnify its officials, employees or
appointees for acts or omissions arising out of or in the course of
the performance of their duties shall be limited to those circumstances
under which the Township itself would be liable for the acts of its
employees under the doctrine of respondeat superior.
If any criminal or disciplinary action is instituted
against a Township official, employee or appointee based upon the
act or omission of that person arising out of and directly related
to the lawful exercise of his or her official duties or under color
of his or her authority, and that action is dismissed or results in
a final disposition in favor of that officer or employee, the Township
shall reimburse that person for the costs of defending the action,
including attorneys' fees and costs of trial and appeals which are
determined by the Township Committee to be reasonable.
In any other action or proceeding, the Township
may provide for the defense of a present or former official, employee
or appointee if the Township Committee concludes that such representation
is in the best interest of the Township and that the person to be
defended acted or failed to act in accord with the standards set forth
in this article.
Indemnification or the defense of any action shall not be provided
or shall be disclaimed if the Township Committee determines that any
of the following conditions shall exist or occur:
A. The act or omission was not within the scope of the
official's or employee's authority, duty to or employment by the Township,
as authorized or imposed by law.
B. The act or failure to act was a crime or was the result
of an intentional wrong or actual fraud, actual malice or willful
misconduct of the person requesting defense and indemnification.
C. The defense of the action or proceeding would create
a conflict of interest between the Township and the official, employee
or appointee.
D. There exist policies of insurance, either obtained
by the Township or by another, by virtue of which the Township official,
employee or appointee is entitled to a defense of the action from
the insurer. However, the Township shall provide a defense and indemnification
as provided by this article to the extent the official, employee or
appointee is not covered by insurance.
E. The Township official, employee or appointee has failed
to deliver to the Township Administrator within 10 days of the time
he or she is served with the summons, complaint, process, notice,
demand or pleading, the original or copy of such document; provided,
however, that this time period may be extended by the Township Committee
for good cause shown.
F. The official, employee or appointee fails to request
the defense of any action.
G. The official, employee or appointee fails to cooperate
fully with the Township in the defense of the matter.
H. If the action or proceeding is brought by or on behalf
of the Township.
If a Township official, employee or appointee
is found guilty of a crime, actual fraud, actual malice, willful misconduct
or an intentional wrong, he or she shall be obligated to reimburse
the Township for the cost of the legal defense (if any is provided
by the Township).
[Amended 2-21-2012 by Ord. No. 02-12]
The Township shall not pay for or indemnify
any person against the payment of punitive or exemplary damages, penalties
or fines resulting from the commission of a crime, actual fraud, actual
malice, willful misconduct or an intentional wrong, but the Township
shall provide for the legal defense of such claims in accord with
the standards set forth in this article. Nevertheless, the Township
Committee shall indemnify an official, employee or appointee for punitive
or exemplary damages, provided the Township Committee determines that
the acts complained of did not constitute a crime, actual fraud, actual
malice, willful misconduct, or an intentional wrong. Such indemnification
shall be accomplished by Township Committee adoption of a resolution
containing factual findings and conclusions and authorizing indemnification
for the damages arising out of the claim or litigation at issue.
The events giving rise to a cause of action
or claim for which a defense or indemnification is sought must have
occurred after January 1, 2004, and any claim based on an event prior
to that date shall not be covered by this article, unless the Township
Committee determines for good cause shown that indemnification should
be provided for an event prior to that date.