[HISTORY: Adopted by the Township Council of the Township
of Allamuchy 2-19-2013 by Ord.
No. 2013-01.[1] Amendments noted where applicable.]
[1]
Editor's Note: This ordinance was originally adopted as Ch.
11 but was renumbered to maintain the organization of the Code.
As used in this chapter, the following terms shall have the
meanings indicated:
A present or former municipal employee, appointee, official,
professional appointee, elected official or member of the various
boards, agencies and commissions of the Township of Allamuchy whether
full- or part-time, appointed, elected or hired. The terms of this
chapter and the definition of "official," "employee" and "appointee"
are to be construed liberally in order to effectuate the purposes
of this chapter except that the terms shall not mean: a) any person
who is not a natural person; b) any person while providing goods or
services of any kind under any contract with the Township except for
services provided pursuant to an employment contract or a professional
services contract; or c) any person while providing legal, engineering,
accounting or other professional services for compensation if the
action involves professional negligence and is otherwise covered by
the person's professional liability insurance policy or unless
said person is a full-time employee of Allamuchy Township. The use
of the terms "official," "employee" or "appointee" shall include all
such persons even if not specifically stated in this chapter.
Pursuant to the provisions of N.J.S.A. 59:10-1 et seq. and subject
to the provisions of this chapter, the Township of Allamuchy is authorized
to and shall provide for the defense of actions brought against its
municipal officials, employees and appointees, shall indemnify such
officials, employees, and appointees to the extent permissible by
law and shall save harmless and protect such persons from financial
loss resulting from litigation. Such indemnification shall arise out
of any action or legal proceeding of a noncriminal nature directly
related, or incidental to, the performance of the duties of the position
or office held by such municipal official, employee or appointee.
Pursuant to N.J.S.A. 59:10-4, the indemnification and defense provided
for in this chapter shall include exemplary or punitive damages resulting
from the official's, employee's, or appointee's civil
violation of state or federal law provided such violation does not
constitute actual fraud, actual malice, willful misconduct or an intentional
wrong as may be adjudicated by a court of competent jurisdiction.
The Township shall not defray the cost of defending any criminal
action against any municipal official except as may be authorized
by state statute or other municipal ordinance or resolution of the
Township of Allamuchy, and in those circumstances, the responsibility
for defraying the cost of defending such employee shall be applicable
only when such criminal proceeding shall have been dismissed or results
in a final disposition in favor of the municipal official. However,
should the Mayor and Township Council determine that there is good
cause to dismiss the employee arising out of the incident(s) giving
rise to the criminal prosecution, the Township will not reimburse
the municipal employee for legal defense and costs in defending this
suit, even though criminal proceedings against the employee may be
dismissed or the employee found not guilty.
The municipal official shall not be entitled to indemnification
or reimbursement pursuant to this chapter unless, within 10 calendar
days of the time such municipal official is served with any summons,
complaint, process, notice, demand or pleading, the official delivers
the original or a copy thereof to either the Township Attorney or
to the Municipal Clerk. The municipal official shall be obliged to
cooperate with the Township in the conduct of the municipal official's
defense. Whenever competent and disinterested legal counsel is available
to the Township through any insurance coverage, the municipal official
shall be obliged to be represented by such counsel. If the Township
wishes to use the Township Attorney or the attorney for any board
or committee of the Township to defend that action, the municipal
official shall be obligated to be represented by that attorney unless
there is a conflict of interest. The refusal of the municipal official
to reasonably cooperate with the Township shall terminate the Township's
obligation to reimburse the municipal official.
B.
A resolution shall be adopted appointing counsel for the defense
and determining counsel fees. The hourly rate shall not exceed the
then rate paid to the Township Attorney without a written resolution
of the Committee. Nothing in this chapter shall preclude the Township
and/or Township Attorney from demanding and reviewing periodically
any costs and attorney's fees in connection with the defense
of the municipal official. In the event a dispute over attorney's
fees arises, the Township reserves the right to submit the dispute
to the Fee Arbitration Committee of the District or pursue any other
course of permissible legal action.
The Township shall not be obligated to provide reimbursement
in the following instances:
A.
Where the act or omission was not within the scope of the municipal
official's employment or authority.
B.
Where the act or omission complained of was because of actual fraud,
willful misconduct, actual malice or the commission of a crime.
C.
Where the legal proceeding is instigated or brought by the Township
of Allamuchy against the municipal official.
D.
Where the legal proceeding involves a question concerning the election
laws.
E.
Where the action is brought against the Township by the municipal
official. If any such legal proceeding shall be dismissed or finally
determined in favor of the municipal official or employee, the official
or employee shall be reimbursed for the expense of the defense providing:
a) the employee proves that the act or omission was within the scope
of employment or authority; and b) the Township fails to prove the
act or omission complained of was because of actual fraud, willful
misconduct or actual malice.
F.
Where the defense of the action or proceeding would constitute a
conflict of interest between the Township and the municipal official.
G.
Where the defense of the action or proceeding is covered by an insurance
policy or policies, however, the Township shall be responsible for
the cost of the deductible.
H.
Where the person is providing legal, accounting or engineering services
for compensation and the legal defense is covered by the person's
professional liability insurance. However, the Township shall be responsible
for the cost of any deductible of the employee's professional
liability insurance policy.
I.
The municipal official has failed to fully cooperate with the defense.
J.
Where the act or omission is in violation of the New Jersey Local
Government Ethics Law, N.J.S.A. 40A:9-22.1 et seq., or any ethics
code adopted pursuant to the statute.
The Township shall have exclusive control over the representation
of the municipal official and such person shall cooperate fully with
the Township and the designated attorney; provided, however, that
the municipal official may at any time at the municipal official's
option take control of the representation by waiving all rights to
indemnification and all rights to payment for the defense costs.
The amount the Township is obliged to reimburse the municipal
official shall be reduced by any insurance coverage payable to the
municipal official by the net amount (that is, any recovery less attorneys
fees, disbursements and Court costs) of any money received by the
municipal official in any counteraction against the person or persons
bringing the action against him or her.
If the legal proceeding is terminated by an agreement among
or between the parties, then the Township shall not be obligated to
reimburse the municipal official unless the Township approves the
settlement agreement.
If the municipal official files a counterclaim or cross claim
in the legal proceedings, the Township shall not be obligated to reimburse
for any attorney fees or court costs attributable to such action.
The obligation of the Township to reimburse a municipal official
for expenses shall arise upon the official incurring the expense for
the official's defense of the legal proceedings and shall be
payable from time to time upon presentation of vouchers by the official
for the services rendered and cost incurred.
Any article, section or subsection of this chapter is declared
for any reason to be unconstitutional or invalid by a court of competent
jurisdiction, such provision(s) shall be deemed severed from the remainder
of the chapter and shall not affect the enforceability of the remainder
of the chapter.
Any and all ordinances or parts thereof inconsistent with the
provisions of this chapter are hereby repealed to such extent as they
are so in conflict or inconsistent; provided, however, that the adoption
of the ordinance shall not prevent or bar the continuance or institution
of any proceedings for offenses heretofore committed in violation
of any existing ordinance of the Township of Allamuchy.
This chapter shall take effect upon final passage and publication
according to law. Any legal proceeding which may be covered by this
chapter which has not been reduced to a final judgment as of the date
of passage shall be covered by the terms of this chapter.
