[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:
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.
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:
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.
