[HISTORY: Adopted by the Mayor and Council of the Borough
of Roselle 3-18-1998 by Ord. No.
2066 (Ch. 4, Art. XXXV, of the 1975 Borough Code).
Amendments noted where applicable.]
The chapter may be known and shall be cited as "Outside Legal
Services for Borough of Roselle."
The purposes of this chapter are as follows:
A. To establish rules and regulations for the appointment of special
counsel for the defense of Borough of Roselle employees in civil and
criminal proceedings.
B. To establish a schedule for payment of such legal services.
A. 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.
B. 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.
C. 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.
D. 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.
E. 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.
F. 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.
G. 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.
H. 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.
I. 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.
J. 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.
K. 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.
L. 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
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The following maximum attorney fee payments are initially authorized
for a defense:
A. The attorney providing representation for an employee in any action
or legal proceeding, once appointed by a resolution by Mayor and Counsel,
shall be compensated at the rate of $110 per hour. No payment shall
be allowed for staff, secretarial or paralegal services.
B. $1,000 for a Municipal Court matter.
C. $5,000 for a Superior Court or Federal District Court matter.
D. In special circumstances, legal fee arrangements other than as set
forth herein, as authorized by resolution of Mayor and Council.
The fee schedule for reimbursement of legal fees for the defense
of a Borough of Roselle employee may be revised by ordinance adopted
by Mayor and Council.