Except as hereinafter provided, the Borough of Lincoln Park,
hereinafter known as the "Borough," shall, upon the request of any
present or former official, employee or appointee of the Borough,
provide for indemnification and legal defense of any civil action
brought against said person or persons arising from an act or omission
falling with the scope of their public duties.
The Borough shall not indemnify any person against the payment
of punitive damages, penalties or fines but may provide for the legal
defense of such claims in accord with the standards set forth herein.
The Borough may refuse to provide for the defense and indemnification
of any civil action referred to herein if the Council determines that:
A. The act
or omission did not occur with the scope of a duty authorized or imposed
by law;
B. The act
or failure to act was the result of actual fraud, willful misconduct
or actual malice of the person requesting defense and indemnification;
or
C. The defense
of the action or proceeding by the Borough would create a conflict
of interest between the Borough and the person or persons involved.
Pursuant to N.J.S.A. 59:10-4, the indemnification and defense
provided for in this article shall include exemplary or punitive damages
resulting from the employee's civil violation of state or federal
law if, in the opinion of the Council, the acts committed upon which
the damages are based did not constitute actual fraud, actual malice,
willful misconduct or intentional wrong.
The terms of this article and the definition of "official, employee
and appointee" are to be construed liberally in order to effectuate
the purposes of this article, except that those 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 Borough except an employment contract;
C. Any person
while providing legal or engineering services for compensation unless
said person is a full-time employee of the Borough; and
D. Any person
who as a condition or his or her appointment or contract is required
to indemnify and defend the Borough and/or secure insurance.
In any other action or proceeding, including criminal proceedings,
the Borough may provide for the defense of a present or former official,
employee or appointee if the Council concludes that such representation
is in the best interest of the Borough and that the person to be defended
acted or failed to act in accord with the standards set forth in this
article.
Whenever the Borough provides for the defense of any action
set forth herein and as a condition of such defense, the Borough may
assume exclusive control over the representation of such person defended
and such person shall cooperate fully with the Borough.
The Borough may provide for the defense pursuant to this article
by authorizing its attorney to act on behalf of the person being defended
or by employing other counsel for this purpose or by asserting the
right of the Borough under any appropriate insurance policy that requires
the insurer to provide defense.