[Added 6-26-2013 by Ord. No. 1171-2013]
Whenever a present or former official, officer, employee or appointee, whether elected or appointed to any public office, agency or body of the municipality or employed by or retained by the municipality for any office, agency or body thereof, whether such person serves in a paid or unpaid capacity, is a defendant in any action or legal proceeding arising out of or incidental to the performance of duties, the Governing Body shall provide the official, officer, employee or appointee with the necessary defense or the means for defense of such action or proceeding, and shall also hold such official, officer, employee or appointee harmless from the payment, settlement or judgment resulting from the proceedings, except in the following instances:
A. 
Where the action has been brought by the municipality itself against said official, officer, employee or appointee in a criminal proceeding instituted as a result of a complaint on behalf of the municipality.
B. 
Where the official, officer, employee or appointee has been specifically found by the trier of facts in proceedings, whether civil or criminal, to have acted with actual fraud, actual malice or willful misconduct.
C. 
Where the officer, officer, employee or appointee is found to have acted in violation of municipal ordinances, rules or regulations.
D. 
Where the legal proceeding involves a proceeding concerning election laws.
The Governing Body may refuse to provide for defense and indemnification referred to in § 46-46 if it determines that:
A. 
The act or omission was not within the scope of the person's employment or official duties.
B. 
The act, or the failure to act, was because of actual fraud, willful misconduct or actual malice.
C. 
The defense of the action or proceedings by the municipality would create a conflict of interest between the municipality and the officer, official, employee or appointee.
An official, officer, employee or appointee requesting defense of any action or claiming indemnification under this ordinance shall cooperate fully and in good faith with the municipality and any attorneys, adjusters, investigators, experts or technical personnel engaged for the purposes of defense in the preparation and presentation of said defense to such action or the settlement or other disposition thereof. If such official, officer, employee or appointee shall neglect, fail or refuse to cooperate as aforesaid, the Governing Body, after hearing, on 10 days' written notice to the official, officer, employee and appointee, for good cause may declare all rights created under this ordinance for the benefit of such official, officer, employee or appointee to be forfeited and terminated. Any such vote shall be by majority vote of the Governing Body.
Whenever the municipality provides defense of an official, officer, employee or appointee pursuant to this ordinance, the municipality may assume exclusive control of the representation of such official, officer, employee or appointee.
Nothing in this ordinance shall be deemed to authorize the municipality to pay for damages resulting from the commission of a crime or for exemplary or punitive damages; provided that the municipality may indemnify an official, officer, employee or appointee for exemplary or punitive damages resulting from a civil violation of State or Federal law if, in the opinion of the Governing Body of the municipality, the acts committed by said official, officer, employee or appointee upon which the damages are based did not constitute actual fraud, actual malice, willful misconduct or an intentional wrong.
The Borough of Wildwood Crest shall provide for defense of and indemnify any present or former official, employee or appointee of the Borough who becomes a defendant in a civil action if the person or persons involved (a) acted or failed to act in a matter in which the Borough has or had an interest; (b) acted or failed to act in the discharge of a duty imposed or authorized by law; and (c) acted or failed to take action in good faith. For purposes of this ordinance, the duty and authority of the Borough to defend and indemnify shall extend to a cross-claim or counterclaim against said person.
In any other action or proceeding, including criminal proceedings, the Borough may provide for the defense of a present or former official, officer, employee or appointee if the Board of Commissioners concludes that such representation is in the best interest of the Borough and that the person to be defended acted or failed to act in accordance with the standards set forth in this ordinance.
The Borough of Wildwood Crest may provide for the defense pursuant to this ordinance by authorizing its attorney to act on behalf of the person being defended or by employing other counsel for this purpose or by asserting the right of the Borough under any appropriate insurance policy that requires the insurer to provide defense.