[HISTORY: Adopted by the Mayor and Council of the Borough
of Wharton 12-30-2019 by Ord. No. O-22-19. Amendments noted where applicable.]
This chapter shall hereafter be known and cited as "Indemnification
of Municipal Employees, Appointees and Officials."
As used in this chapter, the following terms shall have the
meanings indicated:
A present or former municipal employee, appointee, official,
elected official or member of the various boards, agencies and commissions
of the Borough of Wharton, County of Morris, New Jersey.
A.
The Borough of Wharton is hereby authorized to provide for the defense
of actions brought against its officials and to indemnify such officials
to the extent hereinafter set forth and shall save harmless and protect
such persons from any financial loss resulting from litigation.
B.
The obligation of the Borough of Wharton to defend and indemnify
its officials for acts or omissions arising out of or in the course
of the performance of the duties of that person shall be limited to
those circumstances under which the Borough itself would be liable
for the acts of its officials under the doctrine of respondeat superior.
C.
In the event an official or municipal officer is required to defend
an action relating to his or her position subsequent to leaving office
or municipal employment, the terms, conditions and provisions of this
chapter shall apply.
D.
In the event the official or municipal officer is being sued for
punitive damages, the Borough of Wharton shall not indemnify said
official or municipal officer with respect to the same but shall,
to the extent provided herein, defend said official or municipal officer
in said action and defray the costs of said defense.
A.
The Borough of Wharton shall defray the costs of defending any criminal
action against any official (if the underlying allegations of said
criminal action reasonably relate to or arise from the official's
execution of his or her official duties), provided that:
(1)
It is authorized by state statute, municipal ordinance or by resolution,
and provided that the criminal proceedings have been dismissed or
result in a final disposition in favor of the official.
(2)
The Mayor and Borough Council determine that there is no good cause
to dismiss the official arising out of the incident or related incidents
of the criminal proceedings.
The Borough of Wharton shall not approve indemnification of
the defense of any action if:
A.
The act or omission complained of was not within the scope of employment
or authority.
B.
The act or omission complained of 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 Borough and the official involved.
D.
There exist policies of insurance, either obtained by the Borough
or by another, by virtue of which the municipal official is entitled
to a defense of the action in question from the insurer. In the event
the aforesaid insurance covers less than an entire defense to the
particular action, indemnification shall be approved for that part
of the defense not covered by insurance.
E.
The municipal official has failed to deliver to the Mayor and Borough
Council, within 14 days of the time he or she is served with any summons,
complaint, process, notice, demand or pleading, the original or a
copy of such document or thereafter fails to cooperate with the Borough
in the defense of the matter.
F.
The official fails to request the defense of any action.
G.
If the action was brought by the Borough.
If the Mayor and Borough Council determine to provide a defense
as authorized in this chapter, they may do so by:
A.
The Borough Attorney, if the Borough Attorney and the official or
municipal officer requiring defense determine that there is no ethical
conflict created by said representation;
B.
Hiring an attorney of their choice and paying the same directly;
or
C.
Reimbursing the municipal official for reasonable attorney's
fees expended or obligated to be expended by such official in the
defense of the action.
In addition to the provisions hereof, all officials of the Borough
of Wharton shall be entitled to defense and indemnification as provided
in N.J.S.A. 59:10-1 et seq. and N.J.S.A. 59:10A-1 et seq.
All costs of defense and legal fees to be provided herein by
the Borough of Wharton shall be calculated as reasonable prevailing
fees as charged in the County of Morris at the time they are incurred,
and the Borough shall only be responsible to that extent. In the event
of a dispute as to the reasonableness of any fee to be paid by the
Borough in defense of an official or municipal officer, as provided
herein, either party may seek review before the Superior Court of
New Jersey, Morris County, for adjudication.
