[Adopted 6-16-2014 by Ord. No. 14-07]
In accordance with the provisions of N.J.S.A. 59:10-1 et seq.,
the City of Salem, by adoption of this article, agrees to provide
for the defense of actions against and the indemnification of City
employees against whom civil claims are made as a result of the performance
of their duties or service to the City. The scope of the defense and
indemnification to be provided pursuant to this article shall be as
extensive as permitted by New Jersey state law.
As used in this article, the following terms shall have the
meanings indicated:
Any employee, elected official, appointed official, officer,
member of a board, agency or commission of the City who is authorized
by the City of Salem to perform any official act or service, including
but not limited to: all regular employees, and all officers and officials
of the City, including full-time officials, such as City Clerk, CFO,
Court Administrator, Police Chief, Public Works Superintendents, Zoning/Housing
Officer; and part-time officials, such as Mayor and Council members,
Solicitor, Tax Assessor, Judge, Prosecutor, Crossing Guards and Fire
Chief. "Employee" shall:
Except as provided in § 43-13, the City shall provide for the defense of any action brought against an employee on account of any act or omission which occurred during and within the scope of such employee's employment or service with the City. This obligation shall extend to any cross actions, counterclaims or cross complaints against such an employee.
The provisions of § 43-12 shall not be applicable when the City Council determines that:
A.
The act or omission was not within the scope of employment;
B.
The act or failure to act was because of actual fraud, willful misconduct
or actual malice;
C.
The defense of the action or proceeding would create a conflict of
interest between the City and the employee;
D.
The defense of the action or proceeding is provided for by an insurance
policy or policies, whether obtained by the City or by any other person;
E.
The employee failed to deliver to the City Clerk, within 15 calendar
days after the time he is served with any summons, complaint, process,
notice, demand or pleading, the original or a copy of the same;
F.
The employee has failed to cooperate fully with the defense;
G.
The City has brought the action against the employee; or
H.
The action is a criminal or disciplinary proceeding.
The City may provide any defense required of it under this article
through an attorney appointed through the City's insurance carrier,
from its own staff, or by retaining other counsel.
Whenever the City provides any defense required of it pursuant
to this article, the City, through counsel, shall assume exclusive
control over the representation of the employee, and such employee
shall cooperate fully with the defense.
A.
In any case where the City is required to and has provided a defense
under this article, the City shall pay:
(1)
Any bona fide settlement agreements entered into on behalf of the
employee;
(2)
Any judgments entered against the employee; and
(3)
Exemplary damages and punitive damages awarded as a result of the
employee's civil violation of state or federal law if the City Council
finds that the acts committed by the employee upon which the damages
are based did not constitute actual fraud, actual malice, willful
misconduct or an intentional act.
B.
In addition, in any case where the City would be required to provide
a defense under this article, except for the fact that such defense
is provided for by insurance, the City shall provide indemnification
as aforesaid, but only to the extent not covered by insurance.
Nothing in this article shall authorize the City to pay for
punitive or exemplary damages or other damages resulting from the
commission of a crime.
