Borough of Roselle, NJ Defense of Borough Employees

Notification. Any municipal employee of the Borough of Roselle who is named as a defendant in any action or legal proceeding arising out of and directly related to the lawful exercise of his or her employment, in the furtherance of his duties, shall immediately notify his or her department head of the action and proceedings pending. The employee shall also immediately provide the Roselle Municipal Clerk and the Roselle Borough Administrator with a copy of the summons, warrant and/or complaint which was served upon the employee. The Borough Clerk shall, in the case of a civil action forward a copy of the complaint to the insurance carrier for the Borough. The Borough Administrator shall forward the complaint to the Borough Attorney.

Police Department.

(1)

Civil. In some instances, the Borough of Roselle is obligated to provide the means of a defense. If the employee is a member of the Police Department and if the matter is other than a disciplinary or criminal matter brought by the municipality, county or the state, and the action of legal proceeding is directly related to the lawful exercise of police powers or his/her employment in furtherance of his/her official duties, the Borough will provide the means of a defense as set forth herein.

(2)

Criminal. If the matter is a criminal matter, the Borough of Roselle may be required to reimburse a member of the Roselle Police Department for such attorney's fees only if all of the following conditions, pursuant to the provisions of N.J.S.A. 40A:14-155, are met (if the matter is a disciplinary matter Subsection B(2)(c) and (d) must be met):

(a)

The action or legal proceeding is directly related to the lawful exercise of police powers or his/her employment in furtherance of his/her official duties.

(b)

The officer or employee must have been on duty at the time the alleged infraction occurred.

(c)

The officer or employee must be exonerated of all charges brought against him/her with such proceedings finally determined in favor of the officer or employee.

(d)

All other conditions set forth in N.J.S.A. 40A:14-155 and as imposed or construed by case law have been met.

Fire Department.

(1)

Civil. If the employee is a member of the Fire Department and if the matter is other than a disciplinary or criminal matter brought by the municipality or the state, and the action or legal proceeding arises out of or is incidental to the performance of his duties, the Borough will provide the means of a defense as set forth herein.

(2)

Criminal. If the matter is a criminal or disciplinary matter, the Borough of Roselle may be required to reimburse a member of the Roselle Fire Department for such attorney's fees only if each of the following conditions, pursuant to the provisions of N.J.S.A. 40A:14-28, are met (if the matter is a disciplinary matter Subsection C(2)(c) and (d) must be met):

(a)

The action or legal proceeding arises out of or is incidental to the performance of his duties.

(b)

The officer or employee must have been on duty at the time the alleged infraction occurred.

(c)

The officer or employee must be exonerated of all charges brought against him/her with such proceeding finally determined in favor of the officer or employee.

(d)

All other conditions set forth in N.J.S.A. 40A:14-28 and as imposed or construed by case law have been met.

Borough Clerk.

(1)

Civil. If the employee is the Borough Clerk and if the matter is other than a disciplinary or criminal matter brought by the municipality or the state, and the action or legal proceeding arises out of and is directly related to the Clerk's lawful exercise of authority in the furtherance of official duties, the Borough will provide the means of a defense as set forth herein.

(2)

Criminal. If the matter is a criminal or disciplinary matter, the Borough of Roselle may be required to reimburse the Borough Clerk for such attorney's fees only if each of the following conditions, pursuant to the provisions of N.J.S.A. 40A:9-134.1, are met.

(a)

The action or legal proceeding arises out of and is directly related to the Clerk's lawful exercise of authority in the furtherance of official duties.

(b)

The officer or employee must be exonerated of all charges brought against him/her with such proceeding finally determined in favor of the officer or employee.

(c)

All other conditions set forth in N.J.S.A. 40A:9-134 and as imposed or construed by case law have been met.

Other personnel. In all cases where the employee is not a member of the preceding departments, he may not be statutorily entitled to the means of defense. While the legislature has not mandated a duty to provide the means for a defense, it has expressed a public policy favoring reimbursement. In that regard, the Borough of Roselle will provide a defense in civil cases except where:

(1)

The act or omission was not within the scope of employment.

(2)

The act or failure to act was because of actual fraud, willful misconduct or actual malice.

(3)

The defense of the action will create a conflict of interest between the Borough and the employee.

(4)

In any matter where the action was brought by the municipality itself against the officer or employee.

(5)

The act was in violation of any municipal Code of Ethics.

Counsel. Where the Borough of Roselle is required to provide the means of defense for any action or legal proceeding arising out of and directly related to the lawful exercise of authority in the furtherance of an employee's official duties after a complaint is filed against the employee, it is not required to approve any particular attorney to provide a defense to the complaint nor is it required to pay attorney's fees in advance. However, the defendant employee may request the appointment of a particular attorney to represent him/her. The defendant employee must notify the Roselle Borough Attorney, in writing, if a specific defense attorney is desired.

Disciplinary action. A Borough employee may be made the subject of disciplinary proceedings under the various rules and regulations which govern the performance of his duties.

(1)

The Borough of Roselle has no obligation to provide legal defense for a Borough of Roselle employee in a disciplinary proceeding instituted against him/her by the Borough of Roselle or in a criminal proceeding instituted as the result of a complaint made on behalf of the Borough, county or state authorities.

(2)

Since legal representation in these circumstances is not afforded by the employer, a Borough of Roselle employee so charged is free to retain legal counsel of his/her choice to provide legal services in defense of the disciplinary or criminal complaint.

Scope of representation. The attorney providing representation for the Borough of Roselle employee shall agree to represent that employee on all claims filed against that employee except those that are within the purview of insurance coverage provided as the result of a contract of insurance.

Citizen complaint. In the event that a private citizen files a disorderly persons complaint against a Borough of Roselle employee (other than a policeman, fireman or Borough Clerk), and that employee requests legal representation in defense of the complaint, he/she shall submit a written request for representation, attaching a copy of the complaint, copies of all police reports on the incident and such additional information as required to present the full background of the matter. Mayor and Council, with advice from the Borough Attorney, shall determine whether to provide legal representation in its sole discretion.

Attorney qualifications. If a Borough of Roselle employee requests the appointment of an attorney, that attorney may be appointed to provide a defense if:

(1)

The attorney is a member in good standing of the New Jersey Bar.

(2)

The attorney agrees in writing to be bound by the terms of the Borough's outside legal service agreement.

(3)

A resolution authorizing such appointment, based upon evaluation of the specific circumstances of each request, is adopted.

Fee cap. If an appointed attorney, after undertaking the matter, has reason to believe that the amount appropriated in the appointment resolution will be insufficient, he/she may make an application for an increase in the appropriation. Said application must be supported by a certified statement for services rendered to the date of said application including, but not limited to, an itemized record of the time spent and a good faith estimate of the time required for future services. The Roselle Borough Administrator must be notified, in writing, as soon as it appears the additional legal work will exceed the appropriation, and no invoice in excess of the appropriation will be paid unless the Mayor and Council adopts a resolution amending the sum set forth in the appointing resolution.

Billing. All appointed counsel shall submit monthly billing statements to the Business Administrator, including each date on which legal services were provided, a description of each service and the time spent in tenths of an hour. All notices and billings sent pursuant to this agreement shall be in writing and delivered by mailing same, by regular mail, to the address set forth below:

Roselle Business Administrator

Borough Hall

210 Chestnut Street

Roselle, New Jersey 07203