The Borough shall, upon timely notification and request, as provided herein, provide for the defense of any investigation, action, suit or proceeding, commenced or threatened (collectively, "proceeding(s)"), whether civil, criminal, administrative or investigative, including cross-claims, counterclaims or cross actions (collectively, "defense"), against an employee, or account of any act or omission arising out of or in the scope of his/her employment, office or elective or appointive position with, for or on behalf of the Borough (collectively, his/her "employment"), except as otherwise provided herein; for the purposes of this section, "employee" shall mean and include any person holding public office, position or employment, elective or appointive, with, for or on behalf of the Borough and its subordinate and constituent agencies.
[History: Adopted by the Mayor and Council of the Borough of Demarest 4-25-2016 by Ord. No. 1035-16[1]. Amendments noted where applicable.]
[1]
Editor's Note: This ordinance also repealed former Ch. 14, Defense and Indemnification, adopted 6-23-2003 by Ord. No. 871.
The defense of any such proceedings shall include all reasonable costs associated therewith, including legal, expert and technical fees and expenses, together with costs of appeal if an appeal is deemed necessary and appropriate by the Borough Attorney in his/her reasonable discretion, and the Borough shall indemnify, defend, save harmless and protect its employee from any financial loss resulting therefrom, except as otherwise provided herein.
The defense provided herein shall include the indemnification of the employee and shall save him/her harmless from financial loss resulting from any proceeding described herein, including claims, losses, expense, judgments, damages, fines, attorney any other expert and technical fees, court costs, witness fees, transcript costs and any amount paid in settlement thereof and actually and reasonably incurred in connection therewith, to the extent provided by law, except as otherwise provided to the contrary herein. Expenses thus incurred may be paid in advance of final deposition of the action.
Any defense to any proceeding covered by virtue of this chapter shall be provided by attorney(s) and other personnel and service providers selected by the Borough or its insurance carrier(s).
To the extent that any defense in any covered proceeding is provided by or pursuant to any policy of insurance contracted for by the Borough, or available to any other party, the employee requesting and to whom the defense is to be provided shall be subject to all the requirements and restrictions of said policy of insurance to the same extent as is the Borough. In the event that any employee incurs any costs, fees and expenses without the prior written approval of the Borough, such liability so incurred shall be the sole responsibility of the employee and, additionally, the Borough shall have no obligation to indemnify and save harmless the said employee in the applicable proceeding.
An employee shall not be entitled to defense, indemnification and save harmless hereunder unless, within 10 days of the time such employee is served with any subpoena, notice, demand, summons, complaint, order to show cause or pleading, he/she delivers the same or an accurate and complete copy thereof to the Borough Clerk, whereupon it shall be the duty of the Borough Clerk to forthwith notify the governing body, Borough Administrator or, when applicable, the Borough Attorney thereof, provided that such time period may be extended, nunc pro tunc, for cause by a duly passed resolution of the governing body and be it further provided that this notification requirement shall not be operative against any employee in any currently pending proceeding of which the Borough is on actual notice.
Any employee requesting and to whom defense indemnification and save harmless is to be provided shall cooperate fully and in good faith with the Borough, its attorneys, insurers adjusters, investigators, experts and technical personnel engaged for this purpose in the preparation and conduct of the defense or settlement or other disposition in any proceeding. If such employee shall neglect, fail or otherwise impede or refuse to cooperate as aforesaid, which decision thereof shall be in the sole discretion of the governing body, the governing body, on 10 days' written notice to the employee and opportunity to be heard, may for cause declare all rights and benefits created hereunder for the benefit of such employee to be forfeited and terminated by affirmative vote of the governing body;
An employee shall not be entitled to defense, indemnification and save harmless, in any proceeding, in the following event(s) or circumstances:
A.
In any tenure, disciplinary, suspension, termination, licensure or (de)certification affecting proceeding brought by the Borough against the employee;
B.
In any tenure, disciplinary, suspension, termination, licensure or (de)certification affecting proceeding brought by any other governmental unit or agency against the employee;
C.
In the defense of any proceeding including indemnification, save harmless, judgments or settlements based upon what the governing body has determined, upon 10 days' written notice to the employee and opportunity to be heard, that the proceeding is based upon actual fraud, malice, gross misconduct or constituted a crime or did not arise out of or in the scope of his/her duties, office or employment by or with the Borough.
D.
In the payment of punitive or exemplary damages unless the governing body first determines, upon 10 days' written notice to the employee and opportunity to be heard, that the employee's acts or omissions did not constitute actual fraud, actual malice, gross misconduct, and intentional tort or that involves a substantial and material violation of the Local Government Ethics Law, N.J.S.A. 40A:9-22.1 et seq., as same may be from time to time amended;
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]
E.
In any defense of or indemnification for and save harmless from professional malpractice;
F.
In the event that any defense in any proceeding is refused or terminated by the governing body as set forth above for failure of the employee to abide thereby or act in compliance therewith; and
G.
In the event that any insurance coverage is available for payment, in whole or in part, of the defense, indemnification and save harmless of the employee, in any proceeding, to the extent of the said insurance coverage.
All ordinances or parts of ordinances inconsistent or in conflict with this chapter are hereby repealed as to said inconsistencies and conflicts.
If any section or part of clause or phrase in any section of this chapter is for any reason held to be invalid or unconstitutional, such decision shall not affect the remaining provisions of this chapter and a reviewing court may make such changes as may be required to give full weight and effect to the intent of this chapter.
This chapter shall take effect immediately upon passage and publication and shall be applied to any pending qualifying proceedings.