[HISTORY: Adopted by the Township Committee of the Township
of Fairfield 5-19-2015 by Ord.
No. 8-2015. Amendments noted where applicable.]
It is the intent and purpose of this chapter to provide for
the defense of actions against and the indemnification of elected
Township officials and certain other officials for civil actions as
permitted by N.J.S.A. 59:10-1 et seq. or any other federal, state
and/or local law and/or as permitted by this chapter.
[Amended 7-7-2015 by Ord.
No. 9-2015]
Whenever an elected official or appointed official of the Township
of Fairfield is a named defendant in a civil action or civil proceeding
arising out of or directly related to the legal performance of his
or her duties as an elected official or appointed official of the
Township, the Township shall provide such elected official or appointed
official with the necessary and reasonable defense and shall hold
such elected official or appointed official harmless and indemnify
him or her from the payment of any settlement or judgment resulting
from the proceedings, except as set forth in this chapter. The Township
shall indemnify elected officials and appointed officials from all
civil claims, including defense costs, if and only if such an official
establishes that the act or omission upon which the claim or judgment
was based occurred within the scope of his or her lawful course of
conduct as an elected official or appointed official of the Township
and that actual fraud, actual malice or willful or wanton misconduct
was not the cause of such elected official's or appointed official's
actions. The following set forth situations in which the Township
shall not have a duty to indemnify by way of example and not limitation:
A.
When the action has been brought by the Township itself or any board,
commission or authority established as a subdivision of the Township
government against such elected official or appointed official.
B.
When the elected official or appointed official has been specifically
found by a court or other competent tribunal in the processing to
have acted with actual fraud, actual malice or willful or wanton misconduct
while within the scope of employment, or to have acted outside the
scope of employment as to the acts complained of.
C.
When the elected official or appointed official is found to have
violated any code of ethics existing by and pursuant to the laws of
the State of New Jersey or as may be made applicable by the County
of Cumberland, State of New Jersey or federal government.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. II)]
As used in this chapter, the following terms shall have the
meanings indicated:
Any person, presently or in the future, appointed to the
Fairfield Township Planning and Zoning Board. An appointed official
includes alternates of the Planning and Zoning Board, as well as officials
appointed for a full term or for the purpose of filling an unexpired
term, and whether or not such official is compensated for the position.
The protections and benefits of this chapter shall apply only to those
officials specifically defined herein, and not to an official of any
other board, body, authority, commission, or committee.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. II)]
Any report, formal or informal, of a demand for compensation
for damages for injuries allegedly caused by an elected official or
appointed official as defined herein. The term shall include, but
shall not be limited to, all demands for damages before any court
or agency for bodily injury, property damage and violation of civil
or constitutional rights, including false arrest, inverse condemnation
and causes of action arising under 42 U.S.C.A. § 1981 et
seq. (Civil Rights Act of 1871), Civil Rights Act of 1964, Civil Rights
Act of 1991, the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1
et seq. and all other federal, state and/or local laws under which
a claim can be made before any court, judicial or administrative agency,
body, board, commissioner, or committee having jurisdiction over the
State of New Jersey.
Any person, presently or in the future, elected to the Fairfield
Township Committee, whether elected for a full term or for the remaining
portion of an unexpired term, and whether or not such official is
compensated for the position. For the purposes of this chapter, "elected
official" shall also mean any person appointed to complete the unexpired
term of an elected official who has failed for any reason to complete
that elected official's term in office. The protections and benefits
of this chapter shall apply only to those officials specifically defined
herein, and not to an official of any other board, body, authority,
commission or committee.
The provisions of a defense and indemnification as set forth
within this chapter shall be justifiably refused by the Township if
it is determined by the Township Committee with advice from the Township
Attorney or the appropriate conflict attorney if applicable that:
A.
The act or omission alleged was not within the scope of the person's
employment or official duties;
B.
The act or failure to act was because of actual fraud, willful misconduct,
actual malice or intentional wrongdoing;
C.
There exist policies of insurance, either obtained by the Township
or otherwise, by virtue of which the elected official or appointed
official is entitled to a defense of the action in question from any
insurer, including coverage pursuant to the Joint Insurance Fund (JIF)
or Municipal Express Liability (MEL) Policies;
D.
It is not deemed appropriate pursuant to N.J.S.A. 59:10-1 et seq.;
E.
The elected official or appointed official has failed to cooperate
fully with the defense provided by the Township;
F.
The legal proceeding involves questions concerning election laws;
or
G.
The elected official or appointed official fails to notify the Township
within 14 calendar days, in writing and with copies of any documents
alerting such elected official or appointed official of the pendency
or threat of such claim, as to any action threatened against him or
her.
Counsel fees to be paid to outside counsel pursuant to this
chapter must be reasonable as such shall be established by the governing
body through resolution prior to the payment of bills. The Township
shall be entitled to wait for a final determination before making
a decision as to the reimbursement of defense costs pursuant to this
chapter.
Nothing in this chapter shall be construed so as to require
the Township to pay for:
Any decision to indemnify based upon a preliminary investigation
is not binding and final upon the Township. If facts are revealed
during the course of handling a claim that show the elected official
or appointed official was acting in a manner which should not entitle
him to indemnification, the Township Committee may revoke indemnification
with advice from the Township Attorney or the appropriate conflict
attorney if applicable.
By accepting indemnification from the Township in accordance
with this chapter, the elected official or appointed official agrees
that the Township may perform such investigations and enter into such
negotiations on the part of the elected official or appointed official
such as the Township shall deem necessary and proper and may settle
any claims, regardless of whether the Township actually believes the
allegations may be groundless or false. In the event the elected official
or appointed official refuses to consent to any settlement, the Township
shall be liable only for that amount for which the Township could
have settled the claim had the elected or appointed official consented.
This chapter shall not be construed as to create a contract
of insurance between the Township and any elected official or appointed
official. The Township shall not be considered an insurer or primary
insurer for any purpose and shall not by this chapter be obligated
to settle any claim on an elected official's or appointed official's
behalf or to remit its limits of coverage in order to avoid excess
liability on the elected official's or appointed official's part.
This chapter shall not apply to any matter which has already
come to the attention of an elected official or appointed official
of the Township as of the time of adoption.
If a legal proceeding is terminated by an agreement among or
between the parties, then the Township shall not be obligated to reimburse
the elected official or appointed official for any amount, including
legal fees, unless the Township Committee approves the settlement
agreement prior to its execution.
If the elected or appointed official files a counterclaim in
the legal proceedings, the Township shall not be obligated to reimburse
any attorneys' fees or court costs attributable, arising out of or
related to such counterclaim.
