[Ord. No. 15-2006, § 1]
For the purposes of this section, unless the context clearly indicates a different meaning:
A present or former municipal employee, appointee, trustee, officer, director, official, elected official or member of any of the various boards, authorities, agencies or commissions of the township of Weehawken, whether full or part time appointed, elected or hired.
[Ord. No. 15-2006, § 1]
Pursuant to the provisions of N.J.S.A. 59:10-1 et seq. and subject to the provisions of this section, and except as may otherwise be provided herein, the Township of Weehawken is authorized to provide for the defense of any civil action, suit or other proceeding now pending or threatened or hereafter commenced or threatened, including a cross claim or counterclaim brought against a Municipal Official, and shall indemnify such official, as well as defend and indemnify any person or entity claimed to be liable vicariously for the said acts or omissions of the Municipal Official, to the extent permissible by law and shall save harmless and protect such persons and entities from financial loss resulting therefrom on account of any act or omission within the scope of, arising from, or directly related or incidental to his employment, duties, office or position as a Municipal Official, and shall defray all costs of defending such actions, including reasonable counsel fees and expenses, provided that the act or the failure to act does not arise out of actual fraud, willful misconduct or actual malice or the commission of any crime. (Hereinafter, unless the context clearly indicates otherwise, the term "Municipal Official" shall also be deemed to mean and include any other person or entity covered hereunder because of potential vicarious liability for the alleged acts or omissions of a Municipal Official.) The Township of Weehawken may indemnify a Municipal Official for exemplary or punitive damages resulting from his civil violation of State or Federal law if the Township Council determines that the action or inaction of the Municipal Official upon which damages are based did not constitute actual fraud, actual malice, willful misconduct or an intentional wrong, and did not result in a criminal conviction or plea of guilty.
[Ord. No. 15-2006, § 1]
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 Weehawken and, in those circumstances, the responsibility for defraying the cost of defending such Municipal Official shall be applicable only when such criminal proceeding shall have been dismissed or resulted in a final disposition in favor of the Municipal Official. However, should the Township Council determine that there is good cause to dismiss the Municipal Official as a result of the incident giving rise to the criminal prosecution, the Township will not reimburse the Municipal Official for legal defense fees and costs, even though criminal proceedings against the Municipal Official may be dismissed or result in a final disposition in favor of the Municipal Official.
[Ord. No. 15-2006, § 1]
The Municipal Official shall, as a condition to the right to indemnity and defense hereunder, be obligated to give prompt, written notification under the circumstances to the Township Clerk of any action summons, complaint, process, notice, demand or pleading of any kind served, taken or threatened against him. The Municipal Official shall also be obligated, as a condition to the right to indemnity and defense hereunder, to cooperate fully and in good faith with the Township and its attorneys and other agents in the conduct of the official's defense and in the settlement or other disposition thereof.
Whenever competent 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 engage the Township Attorney or the attorney for any board, agency or authority of the Township to defend that action, the Municipal Official shall be obliged to accept such representation by that attorney, unless there is a conflict of interest. The refusal of the Municipal Official to cooperate with the Township or to accept such assigned counsel shall terminate the Township's obligation to indemnify, defend or reimburse the Municipal Official.
[Ord. No. 15-2006, § 1]
If the Township Council determines to provide a defense as authorized by this Article, it may do so by any method previously mentioned, or by:
[Ord. No. 15-2006, § 1]
In addition to the conditions, qualifications and exceptions imposed elsewhere in this Article, the Township shall not be obligated to provide indemnity, defense or reimbursement in any of the following instances:
a.
Where the act or omission was not within the scope of those described hereinabove.
b.
Where the act or omission complained of constituted actual fraud, willful misconduct or actual malice.
c.
Where the legal proceeding is instigated or brought by the Township of Weehawken, or by any board, agency or authority of the Township, against the Municipal Official. However, if any such legal proceeding shall be dismissed or finally determined in favor of the Municipal Official, he shall be reimbursed for the reasonable costs and expenses of his defense, provide that: (a) the Municipal Official establishes that the act or omission was within the scope of his employment or authority; and (b) the Township fails to establish that the act or omission complained of constituted actual fraud, willful misconduct or actual malice.
d.
Where the defense and/or indemnification, as the case may be, of the action or proceeding is provided under any insurance policies obtained by the Township; however, the Township shall be responsible for the cost of the deductible under such policies.
e.
Where the Municipal Official has failed to provide to the Township Clerk prompt notification as required in Subsection 2-30.4 hereof, and such failure has resulted in prejudice to the rights or position of the Municipal Official or the Township.
f.
Where the Municipal Official has failed to cooperate fully with the Township as required by Subsection 2-30.4 hereof.
g.
Where the action is brought against the Township, or against any board, agency or authority of the Township, by the Municipal Official.
h.
Where the act or omission is in violation of the New Jersey Local Government Ethics Law or any similar, applicable law, regulation or ethics code.
[Ord. No. 15-2006, § 1]
The Township shall have exclusive control over the representation of the Municipal Official; provided, however, that the Municipal Official may at any time, on written notice to the Township Clerk and to assigned counsel, take control of his representation by waiving all rights to indemnification and all rights to payment or reimbursement of the defense costs under this Article or under any other applicable law or regulation, including Common Law and Case Law.
[Ord. No. 15-2006, § 1]
The amount which the Township is obliged to reimburse the Municipal Official shall be reduced by any insurance coverage obtained by the Township and paid to or for the benefit of the Municipal Official and by the net amount, (that is any recovery less attorneys fees, disbursements and court costs) of any money recovered by the Municipal Official in any action on a related claim.
[Ord. No. 15-2006, § 1]
If the legal proceeding is terminated by an agreement among or between the parties, the township shall not be obligated to indemnify or reimburse the Municipal Official unless the Township first approves the settlement agreement.
[Ord. No. 15-2006, § 1]
If the Municipal Official files a counterclaim or cross claim in the legal proceedings, the Township shall not be obligated to reimburse for any attorneys' fees or court costs attributable to such claims.
[Ord. No. 15-2006, § 1]
The obligation of the Township to reimburse a Municipal Official for expenses shall arise upon final determination of the legal proceedings. In its discretion, the Township may reimburse a Municipal Official for a portion of expenses incurred prior to a final decision.