Borough of Midland Park, NJ
Bergen County
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Table of Contents
Table of Contents
[Ord. #786, § 1]
This section shall be known and may be cited as the "Purchasing Regulations of the Borough".
[Ord. #786, § 2]
As used in this section:
BOROUGH PURCHASING AGENT
Shall mean the Purchasing Agent of the Borough.
COMMITTEE CHAIRMAN
Shall mean the Council Chairman of the Using Agency Committee.
CONTRACTUAL SERVICES
Shall mean and include all telephone, gas, water, electric light, and power service, repair or maintenance of equipment, machinery, and other Borough owned personal property. The term shall not include professional and other contractual services which are by their nature unique and not subject to competition.
SUPPLIES
Shall mean and include all supplies, materials and equipment.
USING AGENCY
Shall mean any department, agency, commission, bureau or other unit in the Borough using supplies or procuring contractual services as provided for in this section.
[Ord. #786, § 3]
The office of the Borough Purchasing Agent is hereby created.
[Ord. #786, § 4]
The Borough Purchasing Agent shall be in charge of and have general supervision of the Purchasing System. The Purchasing Agent shall perform all duties required by law and shall have the powers and duties prescribed by this section:
a. 
The Purchasing Agent shall have the power and it shall be in his duty to purchase or contract for all supplies or contractual services needed by any using agency of the Borough in accordance with purchasing procedures as prescribed by this section, State Statute and such rules and regulations as the Purchasing Agent shall adopt for the internal management and operation of the Purchasing System.
b. 
The authority of the Purchasing Agent shall not include construction or reconstruction of buildings, streets or parks, and other related projects.
c. 
Except as herein provided, it shall be unlawful for any Borough officer or employee to order, to purchase or to make any contract within the purview of this section other than through the Purchasing Agent, and any purchase order or contract made contrary to the provisions hereof shall not be approved by the Borough Purchasing Agent and the Borough shall not be bound thereby.
d. 
In addition to the purchasing authority conferred here-in, the Purchasing Agent shall:
1. 
Act to procure for the Borough the highest quality in supplies and contractual services at the least expense to the Borough;
2. 
Encourage uniform bidding and endeavor to obtain full and open competition insofar as possible on all purchases;
3. 
Establish and amend when necessary all rules and regulations authorized by or promulgated under this section and any other necessary to its operation;
4. 
Prescribe and maintain such forms as (s)he shall find reasonably necessary to the operation of this section and of the Purchasing System;
5. 
Prepare and secure, with the cooperation of the various Borough departments and agencies, standard and written specifications for supplies used by the various branches of the Borough government.
[Ord. #786, § 5]
All using agencies shall file with the Purchasing Agent detailed requisitions or estimates of their requirements in supplies and contractual services in such manner at such time and for such future periods as the Purchasing Agent shall prescribe. The Purchasing Agent shall examine each requisition or estimate and shall have the authority to revise it as to quantity or estimated cost, but revision as to quality shall be in accordance with the standards and specifications established pursuant to this section.
[Ord. #786, § 6]
a. 
Any purchase or contract within the purview of this section in which any officer or employee of the Borough is financially interested, directly or indirectly, shall be void.
b. 
The Purchasing Agent and every officer and employee of the Borough are expressly prohibited from accepting, directly or indirectly from any person, company, firm or corporation to which any purchase order or contract is or might be awarded, any rebate, gift, money or anything of value whatsoever.
[Ord. #786, § 7]
All purchases of, and contracts for supplies and contractual services shall, except as specifically provided herein be based wherever possible on full and open competition.
[Ord. #786, § 8; Ord. #10-99, § 1]
a. 
All supplies and contractual services except as otherwise provided herein, when the estimated value thereof shall exceed the State of New Jersey bidding threshold as established by N.J.S.A. 40A:11-3, shall be purchased by formal written contract of the lowest responsible bidder, after due notice inviting proposals as required by State law.
b. 
Authorization to publicly advertise for formal bids shall be received in advance from the Borough Council.
c. 
Formal bids shall be received by the Borough Purchasing Committee unless otherwise declared. The Purchasing Committee shall consist of the Purchasing Agent and the Borough Clerk.
d. 
The Purchasing Agent and using agency shall review the bids and submit recommendations as to the award to the Borough Council.
e. 
The Borough Council shall award or reject bids under this subsection.
[Ord. #786, § 9; Ord. #10-99, § 1]
All purchases of supplies and contractual services not requiring formal advertising as required by the Local Public Contracts Law, N.J.S.A. 40A:11-1, et seq., shall be made in accordance with the provisions set forth in the Borough of Midland Park Central Purchasing System User's Manual, being also known as the Purchasing Manual of the Borough of Midland Park.
[Ord. #786, § 10]
a. 
Purchases may be made from contracts awarded through the Bergen County Cooperative Pricing System and the New Jersey State Cooperative Purchasing System or any other purchasing system authorized by the Mayor and Council.
b. 
Purchases made under this subsection may be made without formal advertising or solicitation of quotations.
c. 
Purchases above the dollar amount for formal bidding shall be authorized by resolution of the Borough Council.
[Ord. #786, § 11; Ord. #10-99, § 1]
Emergency purchases shall be made as follows:
a. 
Any emergency purchase exceeding the bidding threshold as established by N.J.S.A. 40:11-3, shall be required to be made in accordance with the procedures set forth in N.J.S.A. 40A:11-6.
b. 
All other emergency purchases shall be required to be made in accordance with the procedures set forth in the Borough of Midland Park Central Purchasing System User's Manual, being also known as the Purchasing Manual of the Borough of Midland Park.
[1]
Editor's Note: Former Subsection 2-29.12, Other Municipal Obligations, previously codified herein was repealed in its entirety by Ordinance No. 10-99.
[Ord. #786, § 12; New]
In addition to any penalty established by Chapter 1, § 1-5, any person violating this section shall be liable to disciplinary action up to and including termination and may be liable for all charges.
[Ord. #443, §§ 8-1, 8-2; Ord. #797, § 1; Ord. #10-99, § 2]
All payment of claims shall be made in accordance with the provisions of the Borough of Midland Park Central Purchasing System User's Manual, being also known as the Purchasing Manual of the Borough of Midland Park.
[Ord. #567, § 4-1]
It shall be the purpose of the prequalification form to furnish information so that a mutually just and equitable decision can be made on the prospective bidder's capabilities to perform the work or to supply the services or supplies for which bids have been advertised. The criteria, not necessarily in order of importance, shall include previous experience and satisfactory completion of projects, organizational and mechanical ability, vocational knowledge, financial and bonding capabilities and existing work load.
[Ord. #567, § 4-2]
There is hereby created and approved a prequalification form, which form is on file with the Borough Clerk and will be made available to any prospective bidder or other interested party.
[Ord. #567, § 4-3]
The Administrator shall study, investigate and approve or disapprove each prospective bidder, and shall obtain, if necessary, additional information from the prospective bidder or his previous clients, customers or employers. The Borough Clerk shall maintain a file of the forms such that each prospective bidder will have a current form on file in the Borough.
[1]
Editor's Note: Former § 2-32, Contracts and Franchises, previously codified herein and containing portions of Ordinance No. 21-93, was repealed in its entirety by Ordinance No. 10-99.
[1]
Editor's Note: See Chapter 90, Fees and Charges, which is printed at the rear of the Code. See "Fees for Chapter 2, Administration."
[Ord. #13-90, §§ 1, 2]
a. 
Surcharge Imposed for Checks Returned for Insufficient Funds. There shall be imposed a surcharge in the amount of twenty ($20) dollars on the amount of any fee or other charge to be paid by an applicant for any permit, license, Municipal Court fine, property tax assessed, or other authorization to be issued by the Borough of Midland Park where a check or other draft has been submitted to the Borough in connection with an application for such permit, license or other authorization or payment of Municipal Court fine or property tax assessed, and that check or draft has been returned for insufficient funds.
b. 
Determination of Amount of Surcharge. It is hereby found and determined that the amount of such surcharge equals the approximate amount of the Borough's administrative and other related costs where any such check or other draft is returned for insufficient funds.
[Ord. #5-90, §§ 1 and 2; Ord. #6-93]
a. 
Definitions.
1. 
APPLICANT — Shall mean any person, corporation, partnership, or other entity to whom a license is issued by the Borough of Midland Park or any agency or department thereof.
b. 
Condition to Issuance. If the applicant for any license or permit to be issued by the Borough of Midland Park is the owner of the premises on which the licensed or permitted activity is to take place, no license or permit shall be issued to such applicant until it shall pay currently any delinquent property taxes or assessments on the property where the activity for which the license or permit is sought or is to be conducted.
c. 
Suspension of Licenses or Permits. Any outstanding license or permit issued by the Borough of Midland Park shall be revoked or suspended in the event the licensed or permitted business or activity is conducted on the premises by the owner thereof and the owner has failed to pay the taxes or assessments due on the property for at least three (3) consecutive quarters.
d. 
Restoration. Upon payment of the delinquent taxes or assessments, the license or permit shall be promptly restored.
e. 
Exceptions. The terms of this subsection shall not apply to:
1. 
Any alcoholic beverage license or permit issued pursuant to the: "Alcoholic Beverage Control Act, N.J.S.A. 33:1-1, et seq.";
2. 
Permits issued to a real estate broker, or issued to a property owner, to permit the erection of a sign on the premises in question to advertise the same for sale or lease.
[Ord. #676; 1973 Code §§ 39-1—39-3]
a. 
Right to Waive Fees. The Mayor and Council, at any regular or special meeting, shall have the right to waive all fees to be collected by any Borough official or board under any ordinances of the Borough in accordance with Subsection c below.
b. 
Right to Waive Bonds. The Mayor and Council, at any regular or special meeting, shall have the right to waive the posting of any bonds under any ordinances of the Borough in accordance with Subsection c below.
c. 
Application. The Mayor and Council shall have the power to waive the collection of all fees by any public official or board or the posting of any bonds under any ordinances of the Borough upon application being made to it by any charitable, religious, veterans' or eleemosynary organization.
[Ord. #10-08, Preamble]
The State Legislature recently adopted Chapter 92 of the Laws of 2007 (N.J.S.A. 43:15C-1 et seq.) to create the Defined contribution Retirement Program to provide retirement benefits to various County and municipal officials.
N.J.S. 43:15C-2 requires the Governing Body of each County, municipality, and other local entity to adopt, as appropriate, either a resolution or ordinance to determine the positions that are substantially similar in nature to the advice and consent of the Senate for appointments by the Governor of the State, pursuant to guidelines or policy that shall be established by the Local Finance Board in the Department of Community Affairs, and for which officials appointed to such positions shall be eligible for and shall participate in the Defined Contribution Retirement Program, subject to the provisions of law.
The Mayor and Council of the Borough of Midland Park has considered the guidelines issued by the Local Finance Board.
[Ord. #10-08, § 1]
Pursuant to N.J.S. 43:15C-2, the following positions are deemed to be eligible for and shall participate in the Defined Contribution Requirement Program:
a. 
Borough Administrator;
b. 
Borough Attorney;
c. 
Borough Engineer;
d. 
Municipal Judge;
e. 
Municipal Prosecutor;
f. 
Public Defender;
g. 
Recreation Director.
[Ord. #10-08, § 2]
Individuals serving in the following positions are exempt from Defined Contribution Retirement Program membership pursuant to N.J.S. 43:15C-2:
a. 
Tax Collector;
b. 
Chief Financial Officer;
c. 
Construction Code Official;
d. 
Tax Collector;
e. 
Registered Municipal Clerk;
f. 
Tax Assessor;
g. 
Principal Public Works Manager;
h. 
Licensed Uniform SubCode Inspectors;
i. 
Qualified Purchasing Agent;
j. 
Municipal Planner;
k. 
Certified Court Administrator.
[Ord. #10-08, § 3]
If an individual is appointed to one of the positions listed in Subsection 2-33A.2 and the individual is not serving in a position as described in Subsection 2-33A.3 above, the Pension Certifying Officer of the municipality may determine that the individual is not required to join the Defined Contribution Retirement Program if that individual: (1) was an active participant in the Public Employee Retirement System on July 1, 2007 and continuously since that time; or (2) has been appointed pursuant to a valid promotional process; or (3) is appointed on a temporary, interim, or "acting" basis to a position requiring State Certification as set forth in Section 2 herein, and is in pursuit of the required certification; or (4) meets such other exceptions that may be approved by the Local Finance Board or the Division of Pensions and Benefits.
[Ord. #10-08, § 4]
This section shall be implemented, construed and subject to the aforesaid Chapter 92 of the Laws of 2007 (N.J.S. 43:15C-1 et seq.) as amended from time to time, and any regulations or guidance documents from the Local Finance Board or the Division of Pensions and Benefits.
[Ord. #10-08, § 5]
Should any part or parts of this section be held to be invalid by any competent court of law, such invalidity shall only affect the part or parts held to be invalid, and all other parts shall remain in effect.
[Ord. #10-08 § 6]
A copy of this section shall be filed with the Director of the Division of Pensions & Benefits of the New Jersey Department of the Treasury.
[Ord. #04-10 § 1]
As used in this section, the following terms shall have the meanings indicated:
BOROUGH-SPONSORED PROGRAM
Shall mean any program sponsored by the Borough of Midland Park or any group or organization approved by the Recreation Commission.
CRIMINAL HISTORY RECORD BACKGROUND CHECK
Shall mean a determination of whether a person has a criminal record by cross-referencing that person's name and/or fingerprints with those on file with the Federal Bureau of Investigation, Identification Division, and/or the State Bureau of Identification of the New Jersey State Police.
CRIMINAL HISTORY RECORD INFORMATION or CHRI
Shall mean information collected by criminal justice agencies concerning persons and stored in the computerized databases of the New Jersey State Police SBI Criminal History Information System, the National Law Enforcement Telecommunications System or other states' computerized repositories containing criminal history record information consisting of identifiable descriptions and notations of arrests, indictments, or other formal criminal charges, and any dispositions arising therefrom, including convictions, dismissals, correctional supervision and release.
DEPARTMENT
Shall mean the Borough of Midland Park Police Department.
NONCRIMINAL JUSTICE PURPOSE
Shall mean any purpose, other than administration of criminal justice or criminal justice purpose, including employment and licensing, for which applicant fingerprints or name search requests are submitted by authorized requesters, as required or permitted by a Federal or State statute, rule or regulation, executive order, administrative code provision, local ordinance, resolution or by this section, to the State Bureau of Identification for the dissemination of criminal history record information.
NONPROFIT YOUTH-SERVING ORGANIZATION or ORGANIZATION
Shall mean any corporation, association or other organization established pursuant to Title 15 of the Revised Statutes, Title 15A of the New Jersey Statutes, or other law of this State, but excluding public and nonpublic schools, and which provides recreational, cultural, charitable, social or other activities or services for persons younger than eighteen (18) years of age, and is exempt from Federal income taxes.
STATE BUREAU OF IDENTIFICATION or SBI
Shall mean the New Jersey State Bureau of Identification created by P.L. 1930, c. 65 (N.J.S.A. 52:1-12 et seq.), a bureau within the Division of State Police.
[Ord. #04-10 § 2; Ord. #09-10 §§ 1, 2; Ord. #11-13]
a. 
The Borough requires that all employees and volunteers, eighteen (18) years of age and older, participating in any activity sponsored by the Borough of Midland Park, the Midland Park Recreation Commission or any nonprofit youth-serving organization approved by the Borough or its Recreation Commission, undergo through the State Bureau of Identification a criminal history record background check on each prospective and current employee, volunteer or participant. Each employee, volunteer and participant shall be required to undergo the background check not less than once every five (5) years, provided that the Borough reserves the right to require more frequent testing.
b. 
The Division of State Police shall inform the Department and the individual whether the person's criminal history record background check reveals a conviction of a disqualifying crime or offense set forth in Subsection 2-33B.4 of this section.
c. 
Prior to the conducting of a criminal history background check, the employee, volunteer or participant shall provide written consent in connection therewith.
d. 
The volunteer shall bear the costs associated with conducting the criminal history record background checks.
[Ord. #04-10 § 3; Ord. #09-10 § 3]
a. 
Prospective or current employees, volunteers and participants of nonprofit youth-serving organizations and/or employees and volunteers of Borough-sponsored programs shall submit their name, address, fingerprints, or other required information and written consent to the Recreation Advisory Council or such other person or entity designated by the Borough for the criminal history record background check to be performed. Upon receipt thereof, the Recreation Advisory Council or the person or entity designated by the Borough shall submit this documentation to the State Bureau of Identification.
b. 
The Department shall act as a clearinghouse for the collection and dissemination of information obtained as a result of conducting criminal history record background checks pursuant to this section.
c. 
The Recreation Advisory Council and/or the person designated by the Borough may, in their discretion, engage the services of a third-party independent agency or a volunteer group authorized by the Chief of Police to conduct the criminal history record background checks authorized under this section.
[Ord. #04-10 § 4]
a. 
A person may be disqualified from serving as an employee or volunteer of a nonprofit youth-serving organization if that person's criminal history record background check reveals a record of conviction of any of the following crimes or offenses:
1. 
In New Jersey, any crime or disorderly persons offense:
(a) 
Involving danger to the person, meaning those crimes and disorderly persons offenses set forth in N.J.S.A. 2C:11-1 et seq., N.J.S.A. 2C:12-1 et seq., N.J.S.A. 2C:13-1 et seq., N.J.S.A. 2C:14-1 et seq., or N.J.S.A. 2C:15-1 et seq.
(b) 
Against the family, children or incompetents, meaning those crimes and disorderly persons offenses set forth in N.J.S.A. 2:14-1 et seq.
(c) 
Involving theft as set forth in Chapter 20 of Title 2C of the New Jersey Statutes.
(d) 
Involving any controlled dangerous substance or controlled substance analog as set forth in Chapter 35 of Title 2C of the New Jersey Statutes except paragraph (4) of Subsection (a) of N.J.S.A. 2C:35-10.
2. 
In any other state or jurisdiction, conduct which, if committed in New Jersey, would constitute any of the crimes or disorderly persons' offenses described in Subsection a1 of this section.
b. 
For purposes of interpreting the information recorded in a criminal history record to determine the qualifications of the employee or volunteer of a nonprofit youth-serving organization and/or the employee or volunteer involved with Borough-sponsored programs involving minors, the Borough shall presume that the employee or volunteer is innocent of any charges or arrests for which there are no final dispositions on the record.
c. 
The determination of whether the information contained in the criminal history record is sufficient to disqualify an employee or volunteer shall be made by the State Police. Any employee or volunteer dissatisfied with the determination shall be entitled to file an appeal with the Criminal Background Check Appeal Panel created pursuant to this section.
[Ord. #04-10 § 5]
a. 
Access to criminal history record information for noncriminal justice purposes, including licensing and employment, is restricted to the Police Department and Criminal Background Check Appeal Panel, on a need-to-know basis, as authorized by Federal or State statute, rule or regulation, executive order, administrative code, local ordinance or resolution regarding obtaining and dissemination of criminal history record information obtained under this section.
b. 
Such persons or organizations shall limit their use of criminal history record information solely to the authorized purpose for which it was obtained, and criminal history record information furnished shall not be disseminated to persons or organizations not authorized to receive the records for authorized purposes. Use of this record shall be limited solely to the authorized purpose for which it was given, and it shall not be disseminated to any unauthorized persons. This record shall be destroyed immediately after it has served its intended and authorized purpose. Any person violating Federal or State regulations governing access to criminal history record information may be subject to criminal and/or civil penalties.
[Ord. #04-10 § 5]
If this criminal history record may disqualify an applicant or existing employee or volunteer for any purpose, the disqualified person shall have an opportunity to complete and challenge the accuracy of the information contained in the criminal history record or request an exception. The disqualified person shall be afforded a reasonable period of time to correct and complete this record. A person is not presumed guilty of any charges or arrests for which there are no final dispositions indicated on the record.
[Ord. #04-10 § 7; Ord. #09-10 § 4]
a. 
Criminal Background Check Appeal Process. If the State Police disqualifies an employee or volunteer, the employee or volunteer may appeal that disqualification by filing a written notice of appeal with the Chief of Police no later than twenty (20) days after receiving notice of the disqualification from the State Police. Any appeal requested shall proceed before the Criminal Background Check Appeal Panel.
b. 
Criminal Background Check Appeal Panel. In order to monitor and supervise the enforcement of this section, the Borough of Midland Park hereby creates a Criminal Background Check Appeal Panel, which shall consist of three (3) members. The composition of the Criminal Background Check Appeal Panel shall be as follows:
1. 
One (1) member of the Criminal Background Check Appeal Panel shall be the Police Chief, or his designee.
c. 
Powers. The Criminal Background Check Appeal Panel is granted and shall have and exercise, in addition to other powers herein granted, all the powers necessary and appropriate to carry out and execute the purposes of this section, including but not limited to, the following:
1. 
To hold hearings and adjudicate appeals by employees and volunteers dissatisfied with the disqualification.
2. 
To hold hearings and adjudicate appeals by employees and volunteers dissatisfied with the determination concerning the accuracy of the criminal history record.
3. 
To grant exceptions where appropriate.
d. 
Findings. Not later than forty-five (45) days after the conclusion of the hearing, the Criminal Background Check Appeal Panel shall issue its findings of fact and the Panel's decision to the employee/volunteer involved in the appeal and to the Recreation Commission who shall act in accordance with the Panel's decision.
[Ord. #05-13]
The Borough hereby finds that it is appropriate to provide for the indemnification and defense of Borough employees, appointees, and officials in accordance with the provisions of N.J.S.A. 59:10-4, and applicable law which empowers local public entities to provide for such indemnification.
[Ord. #05-13]
As used in this section, the following term shall have the meanings indicated:
EMPLOYEE
Shall mean any official, officer or member of the Borough's agencies, commissions or Council of the Borough, or employee or servant, whether or not compensated, full or part-time, elected, appointed or employed, who is authorized to perform any act or service; provided, however, that the term does not include an independent contractor. The term shall also include persons formerly holding office or employment. The term employee is to be construed liberally in order to effectuate the purposes of this section.
[Ord. #05-13]
a. 
Pursuant to the authority granted by provisions of the New Jersey Tort Claims Act, N.J.S.A. 59:10-4, and applicable law, the Borough of Midland Park does hereby authorize and provide to its employees indemnification in accordance with the indemnification provisions applicable to all State employees under the New Jersey Tort Claims Act.
b. 
The Borough does also hereby authorize indemnification of any person formerly or presently holding any office, position or employment, elected or appointed, hereafter referred to as an employee, in accordance with the provisions herein.
[Ord. #05-13]
a. 
Except as otherwise provided herein, the Borough shall indemnify and save harmless any employee from financial loss resulting from any civil action, suit or proceeding, including a cross action, counterclaim or a cross-complaint, against such employee on account of any act or omission done in the scope of his/her employment; provided, however, that the act or failure to act does not arise out of actual fraud, willful misconduct, actual malice or an intentional wrong.
b. 
The Borough shall defray all costs of defending a legal action against said employee, including attorney's fees consistent with the current hourly rate established by the Borough, Court costs and expert or technical witness fees, and any amount paid in settlement thereof, and actually and reasonably incurred in connection therewith, to the extent permitted by general law. Expenses thus incurred may be paid in advance of final disposition of the action, but the Borough may, in its discretion, wait for a final determination before being obligated to make any payments.
c. 
Nothing herein shall authorize the Borough to pay for damages resulting from the commission of a crime; however, the Borough shall indemnify and save harmless each employee from financial loss resulting from any action described above, including punitive or exemplary damages, if, in the opinion of the governing body, the acts committed by the employee upon which the damages are based do not constitute actual fraud, actual malice, willful misconduct or an intentional wrong.
d. 
If the Borough employee files a counter action or counterclaim in the legal proceeding, the Borough shall not be obligated to reimburse such employee for any attorney fees or Court costs attributable to such counter action or counterclaim.
[Ord. #05-13]
An employee shall not be entitled to indemnification or the cost of defense under this section unless, within ten (10) days of the time such employee is served with any summons, order to show cause, complaint, process, notice, demand or pleading, he/she delivers the same, or a copy thereof, to the Borough Clerk, who shall then forthwith notify the Mayor and Council of the pending action; provided, however, that this time period may be extended for good cause by the affirmative vote of a majority of the full membership of the governing body.
[Ord. #05-13]
The Borough may provide any defense required of it under this section through the Borough Attorney or by employing other counsel as it deems appropriate. Where a conflict of interest may exist, the public employee may engage his or her own counsel which counsel shall be subject to the reasonable satisfaction of the governing body. Such engagement shall be further subject to an appropriate agreement between the Borough and the public employee.
[Ord. #05-13]
Except as otherwise provided in this section, whenever the Borough provides any defense required of it under this section, the Borough, through counsel, may assume exclusive control over the representation of the public employee, and such employee shall cooperate fully with the defense.
[Ord. #05-13]
In the event that a judgment is entered in favor of the public employee at the trial court level and the adverse party files an appeal therefrom, the governing body shall be obligated to pay the costs of counsel beyond the trial court level. In the event that an adverse judgment is entered against the public employee at the trial court level and the public employee or adverse party seeks to appeal therefrom, it shall be within the sole discretion of the governing body to decide whether to pay for the costs of counsel beyond the trial court level.
[Ord. #05-13]
a. 
The governing body may disclaim liability for coverage or defense costs if any of the following conditions shall occur:
1. 
The employee is covered by insurance for the cost of his/her defense and indemnification.
2. 
The legal proceeding is instigated or brought by the employee.
3. 
The legal proceeding is instigated or brought by the municipality against the employee.
4. 
Any of the acts or omissions complained of was, in the opinion of the governing body, the product of actual fraud, actual malice, willful misconduct or an intentional wrong.
5. 
The legal proceeding involves a question concerning the election laws.
6. 
The legal proceeding involves a claim for misfeasance or malfeasance in office or a claim of fraud, theft or misappropriation of public funds, and the employee is found liable for the charge.
7. 
The legal proceeding is a criminal or disciplinary action.
8. 
The legal proceeding involves an act or omission of the employee which was not within the scope of employment.
b. 
The Borough may not disclaim coverage under this section if there shall have been a specific determination by the trier of fact that the employee's actions or omissions complained of were within the employee's scope of employment, duties and responsibilities and, further, that the employee's actions or omissions complained of did not involve actual fraud, actual malice or willful misconduct.
[Ord. #05-13]
An employee claiming indemnification under this section shall cooperate fully and in good faith with the Borough and with attorneys, adjusters, investigators or experts, or technical personnel engaged by the Borough for the preparation and presentation of a defense to such action, or the settlement or other disposition thereof, and if the employee neglects, fails or refuses to cooperate, as herein required, the governing body, after a hearing on ten (10) days' written notice to the employee, and for cause, may declare all rights created under this section for the benefit of such employee to be forfeited and terminated by the affirmative vote of a majority of the full membership of the Borough Council.