[HISTORY: Adopted by the Township Committee of the Township
of Elk 5-6-2010 by Ord. No. O-2010-34.[1] Amendments noted where applicable.]
GENERAL REFERENCES
Personnel policies — See Ch. 26.
Public Defender — See Ch. 30.
[1]
Editor's Note: This chapter also superseded former Ch.
12, Defense and Indemnification, adopted 12-4-2003 by Ord. No. O-20-2003.
A.
Except as hereinafter provided, the Township of Elk, hereinafter
known as the "Township," shall, upon the request of any present or
former elected official, employee or appointee of the Township, 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.
B.
The Township 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 Township may refuse to provide for the defense and indemnification
of any civil action referred to herein if the Mayor and Committee
determine that:
(1)
The
act or omission did not occur within the scope of a duty authorized
or imposed by law;
(2)
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
(3)
The
defense of the action or proceeding by the Township would create a
conflict of interest between the Township and the person or persons
involved.
C.
The terms of this chapter and the definitions of "official," "employee"
and "appointee" are to be construed liberally in order to effectuate
the purposes of this chapter except that these terms shall not mean:
(1)
Any person who is not a natural person;
(2)
Any person while providing goods or services of any kind under any
contract with the Township except an employment contract;
(3)
Any person while providing legal or engineering services for compensation
unless said person is a full-time employee of the Township; and
(4)
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.
D.
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: a)
acted or failed to act in a matter in which the Township has or had
an interest; b) acted or failed to act in the discharge of a duty
imposed or authorized by law; and c) acted or failed to take action
in good faith. For purposes of this chapter, the duty and authority
of the Township to defend and indemnify shall extend to a cross-claim
or counterclaim against said person.
E.
In any other action or proceeding, including criminal proceedings,
the Township may provide for the defense of a present or former official,
employee or appointee, if the Mayor and Committee conclude 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 chapter.
F.
Whenever the Township provides for the defense of any action set
forth herein and as a condition of such defense, the Township may
assume exclusive control over the representation of such persons defended
and such person shall cooperate fully with the Township.
G.
The Township may provide for the defense pursuant to this chapter
by authorizing its attorney to act in behalf of the person being defended
or by employing other counsel for this purpose or by asserting the
right of the Township under any appropriate insurance policy that
requires the insurer to provide defense.
All prior ordinances or parts of ordinances inconsistent with
this chapter be and the same are hereby repealed to the extent of
such inconsistencies.
Should any section, clause, sentence, phrase or provision of
this chapter be declared unconstitutional or invalid by a court of
competent jurisdiction, such decision shall not affect the remaining
portions of this chapter.
This chapter shall take effect immediately upon final passage
and publication in accordance with law.
