[Ord. 1987-3, 6/4/1987, § I; as amended by Ord. 2011-12, 10/6/2011]
Unless a context indicates otherwise, the words and phrases used in this section shall have the following meanings:
EMPLOYEE
Any officer, employee, servant as well as any member of a board, commission, committee, division or department, of the Township including elected or appointed officials and persons acting on behalf or in service of the Township in any official capacity, whether with or without compensation. The term "employee" does not include an independent contractor under contract with the Township who is providing services to the Township but who does not serve in an official capacity. The term "employee" does include former employees for acts and omissions within the scope of their employment while employed by the Township.
TOWNSHIP
The Township of Lower Macungie, a township of the first class, with offices situate in Lehigh County, Commonwealth of Pennsylvania.
[Ord. 1987-3, 6/4/1987, § II; as amended by Ord. 2011-12, 10/6/2011]
1. 
As a condition of service or employment with the Township, the Township shall provide an employee, subject to the conditions and requirements of this section, and notwithstanding the fact that such employee may have concluded service or employment with the Township, such defense as may be reasonably necessary to defend any claim, civil action, or proceeding filed against such employee, in his or her official or individual capacity or both, on account of an act or omission in the scope of his or her employment as an employee of the Township.
A. 
The Township may provide for a defense by the Township Solicitor or by employing other counsel for this purpose or by purchasing insurance which requires that the insurer provide the defense. The Township has no right to recover such expenses from the employee defended, except as otherwise provided herein.
B. 
The Township may refuse to provide for the defense of an action against an employee if the Township determines that:
(1) 
The act or omission was not within the scope of such employee's employment.
(2) 
Such employee acted or failed to act because of actual fraud or actual malice.
(3) 
The lawsuit or other legal proceeding was brought by or on behalf of the Township.
C. 
The provisions of this section shall be applicable; provided, that the following conditions are met:
(1) 
The employee shall, in writing, request the Township to provide for the defense of the employee within 15 days after service of any claim, demand, notice or summons or other process upon the employee. Such written request shall be filed together with the claim, demand, notice or summons or other process with the Township Commissioners. The Township, in its discretion, may provide requested defense for any of its employees who fail to make a request within the time prescribed by this subsection.
(2) 
In addition to the notice provided in Subsection 1C(1), the employee shall, as soon as practical, give further written notice, identifying the officers or employees involved, all information known to the employee involved, all information known to the employee with respect to the date, time, place, and circumstances surrounding the incident or conduct giving rise to the claim or proceeding, as well as the names and addresses of all persons allegedly injured or otherwise damaged thereby, and the names and addresses of all witnesses.
(3) 
The employee shall cooperate with the Township Solicitor or other attorney designated by the Township and employed for the provision of defense, and, upon request, assist in making settlements of any suits and enforcing any claim or any right of contribution or indemnity against any person or organization who may be liable to the Township because of any damage or claim of loss arising from said incident or course of conduct.
(4) 
Such employee shall, without compensation, attend interviews, depositions, hearings and trials and shall assist in securing and giving evidence and obtaining attendance of witnesses.
(5) 
Such employee shall not accept nor voluntarily make any payment, assume any obligation, or incur any expense, other than for first aid, to others at the time of any incident or course of conduct giving rise to any such claim, loss, or damage.
D. 
If legal representation of an employee in undertaken by the Township, all conditions of representation are met, and a judgment is entered against the employee, or a settlement made, the Township shall pay such judgment or settlement, provided, that the Township may, at its discretion appeal such judgment. Notwithstanding the provisions of this subsection, the Township shall not be liable for any punitive or exemplary damages against an employee (unless the Township in its discretion shall determine in each specific case that such damages shall be paid by the Township), nor for the payment of any costs, judgments, or settlements which are paid through an applicable contractor policy of insurance.
E. 
In the event that an employee fails or refuses to comply with any of the conditions of this section or cooperate with counsel employed by Township, then all the provisions of this section shall be inapplicable, and have no force or effect with respect to any such claim or litigation. Nothing herein stated shall preclude an employee from providing his or her own representation with regard to any claim or litigation.
F. 
If the Township determines that an employee does not come within the provisions of this section, and thus fails or refuses to provide an employee with a defense, and a court of competent jurisdiction later determines that such claim does come within the provisions of this section, then the Township shall pay any judgment rendered against the employee and reasonable costs and fees incurred by the employee in defending against the claim. The Township shall additionally pay any attorneys' fees incurred in obtaining the determination that such claim is covered by the provisions of this section. Nothing in this section shall be construed to deprive an employee of the right to petition a court of competent jurisdiction to compel the Township to perform the duties imposed by this section.
G. 
If the Township determines that a claim against an employee does come within the provisions of this section, and if the employee fails to cooperate in good faith in the defense of the claim or action or if a court of competent jurisdiction later finds that such claim does not come within the provisions of this section, then the Township shall be reimbursed by the employee for any payments made by it for any judgment, or portion thereof, and costs or fees incurred by or on behalf of the employee's defense, and the Township shall be reimbursed for costs or expenses incurred in obtaining the determination that such claim is not covered by the provisions of this section.
(1) 
Nothing contained in this section shall be construed to modify or amend any provision of any policy of insurance or any employee thereof as named insured. In the event of any conflict between this section and the provisions of any such policy of insurance, the policy provisions shall be controlling; provided, however that nothing contained in this section shall be deemed to limit or restrict any employee's right to full coverage pursuant to this section, it being the intent of this section to provide complete coverage outside and beyond insurance policies which may be in effect, while not compromising the terms and conditions of such policies by any conflicting provisions contained in this section.
(2) 
Nothing in this section shall be construed as abrogating or waiving any limitation of liability presently or hereinafter made applicable to the Township or its employees which would otherwise be applicable in any action or proceeding to which this section would apply.
H. 
The provisions of this section shall apply to any pending claim or lawsuit against an employee, or any such claim or lawsuit hereafter filed, irrespective of the date of the events or circumstances which are the basis of such claim or lawsuit; provided, however, that in any pending claim, action, or proceeding for which the Township is currently providing defense for an employee that such employee shall not be required to provide a written request for the provisions of defense.