[HISTORY: Adopted by the Mayor and Council of the Borough of Wallington 5-29-2020 by Ord. No. 2020-1.[1] Amendments noted where applicable.]
[1]
Editor's Note: This ordinance also repealed former Ch. 26, Defense and Indemnification, adopted 2-16-2006 by Ord. No. 2006-01.
As used in this chapter, the following terms shall have the meanings indicated:
OFFICIAL or MUNICIPAL OFFICER
A present or former municipal employee, police officer, special police officer, volunteer fire officer, emergency medical technician, appointee, official, elected official or member of the various boards, agencies and commissions of the Borough of Wallington, Bergen County, New Jersey.
A. 
This section hereby expressly adopts and incorporates all term definitions set forth in the New Jersey Tort Claims Act, N.J.S.A. 59:1-3, as the definitions of any such terms included herein.
B. 
The Borough shall provide for the indemnification and/or defense of any legal actions or proceedings claimed, threatened or instituted against any past or present appointee, official, elected official or member of the various boards, agencies and commissions of the Borough (if the underlying allegations of said civil action reasonably relate to or arise from their execution of their official duties) to the extent hereinafter set forth, and shall save harmless and protect such persons from any financial loss resulting therefrom, as determined by the Borough.
C. 
The Borough is hereby empowered to provide for the indemnification and/or defense of any legal actions or proceedings claimed, threatened or instituted against past or present employees of the Borough or past or present officials or municipal officer of the Borough to the extent hereinafter set forth, and may save harmless and protect such persons from any financial loss resulting therefrom, as determined by the Borough.
D. 
The Borough is empowered to provide for the indemnification and/or defense of any legal action or proceeding claimed, threatened or instituted whenever such action or proceeding has been or shall be brought against any official or municipal officer for acts or omissions arising out of and directly related to the lawful exercise of the official or municipal officer's official duties.
E. 
In indemnifying or defending any such officials or municipal officers, the municipality may incur all costs of defending such action or proceeding, including reasonable attorneys' fees and expenses, together with the amount owed on any settlement or final judgment, including attorneys' fees and costs awarded to a prevailing party and costs of appeal, if required.
F. 
The Borough is empowered to provide for the indemnification of exemplary or punitive damages and legal fees resulting from the civil violation of state or federal law if, in the opinion of the Mayor and Council, the acts committed did not constitute actual fraud, actual malice, willful misconduct or intentional wrong. Any such indemnification shall be by resolution of the Mayor and Council.
G. 
Notwithstanding anything to the contrary set forth above, the Borough shall not be responsible for any defense or indemnification under the following conditions:
(1) 
If any policy of liability insurance or legal defense fund (e.g., PBA Legal Defense Fund) is available for defense and/or indemnification;
(2) 
Where the official or municipal officer is served with any claim, summons, complaint, process, notice, demand or pleading and the employee fails to deliver, within 20 calendar days of the receipt thereof, the original or exact copy thereof to the employee's department head, the Borough Administrator or the Borough Attorney;
(3) 
Where the official or municipal officer fails to fully cooperate with the Borough in the preparation or defense of the action or proceeding; and
(4) 
Where the official or municipal officer refuses to accept representation by an attorney assigned for the employee or official by the Borough.
H. 
This section shall take effect upon final passage and publication in accordance with law and be effective and cover all present and future claims, actions, proceedings, judgments and awards.
A. 
The Borough of Wallington shall defray the costs of defending any criminal action against any official or municipal officer (if the underlying allegations of said criminal action reasonably relate to or arise from the employee or official's execution of their official duties), provided that:
(1) 
It is authorized by state statute, municipal ordinance and by resolution, and provided that the criminal proceedings have been dismissed or result in a final disposition in favor of the employee or official; and
(2) 
The Mayor and Council determines that there is no good cause to dismiss or discipline or censure the official or municipal officer arising out of the incident or related incidents of the criminal proceedings; and
B. 
The Borough of Wallington shall provide for the defense of any criminal action against any official or municipal officer, provided that it is authorized by state statute, municipal ordinance and by resolution and such defense is not herein otherwise limited or covered by another legal defense fund or any policy of insurance.
The Mayor and Council may not approve indemnification of the defense of any action, if:
A. 
The act or omission complained of was not within the scope of employment or authority.
B. 
The act or omission complained of constitutes in the reasonable opinion of the Mayor and Council actual fraud, willful misconduct or actual malice.
C. 
The defense of the action or proceeding would create a conflict of interest between the Borough and the official or municipal officer involved.
D. 
The official or municipal officer has failed to deliver to the Mayor and Council, within 20 days of the time he or she is served with any summons, complaint, process, notice, demand or pleading, the original or copy of such document or thereafter fails to cooperate with the Borough in the defense of the matter.
E. 
The official or municipal officer fails to request the defense of any action.
F. 
Any action was brought by the Borough against the official or municipal officer.
If the Mayor and Council determine to provide a defense as authorized in this section, they may do so by any of the following:
A. 
The Borough Attorney, if the Borough Attorney and the employee or official requiring defense determine that there is no ethical conflict created by said representation;
B. 
Hiring an attorney of Borough's choice and paying the same directly; or
C. 
Reimbursing the official or municipal officer for reasonable attorney's fees (as reasonable is determined by the Borough Attorney) expended or obligated to be expended by such official in the defense of the action at the current municipal rate charged by attorneys working for the Borough.
In addition to the provisions hereof, all officials and employees of the Borough shall be entitled to defense and indemnification as provided in N.J.S.A. 59:10-1 et seq., and N.J.S.A. 59:10A-1 et seq.