[HISTORY: Adopted by the Mayor and Council of the Borough
of Hasbrouck Heights 12-22-2020 by Ord. No. 2469. Amendments noted where
applicable.]
As used in this chapter, the following terms shall have the
meanings indicated:
A present or former municipal employee, police officer, volunteer
fire officer, appointee, official, elected official or member of the
various boards, agencies and commissions of the Borough of Hasbrouck
Heights, Bergen County, New Jersey.
A.
This section hereby expressly adopts and incorporates all term definitions
set forth in the New Jersey Tort Claims Act, N.J.S.A. 59:1-3, as the
definitions of any such terms included herein.
B.
The Borough may provide for the indemnification and/or defense of
any legal actions or proceedings claimed, threatened or instituted
against any past or present Borough official or municipal officer
(if the underlying allegations of said civil action reasonably relate
to or arise from their execution of their official duties) to the
extent hereinafter set forth, and may save harmless and protect such
persons from any financial loss resulting therefrom, as determined
by the Borough.
C.
The Borough is hereby empowered to provide for the indemnification
and/or defense of any legal actions or proceedings claimed, threatened
or instituted against past or present Borough officials or municipal
officers to the extent hereinafter set forth, and may save harmless
and protect such persons from any financial loss resulting therefrom,
as determined by the Borough.
D.
The Borough is empowered to provide for the indemnification and/or
defense of any legal action or proceeding claimed, threatened or instituted
whenever such action or proceeding has been or shall be brought against
any official or municipal officer for acts or omissions arising out
of and directly related to the lawful exercise of the official's
or municipal officer's official duties.
E.
In indemnifying or defending any such officials or municipal officers,
the Borough may incur all costs of defending such action or proceeding,
including reasonable attorneys' fees and expenses, together with
the amount owed on any settlement or final judgment, including attorneys'
fees and costs awarded to a prevailing party and costs of appeal,
if required.
F.
The Borough is empowered to provide for the indemnification of exemplary
or punitive damages and legal fees resulting from the civil violation
of state or federal law if, in the opinion of the Mayor and Council,
the acts committed did not constitute actual fraud, actual malice,
willful misconduct or intentional wrong. Any such indemnification
shall be by resolution of the Mayor and Council.
G.
Notwithstanding anything to the contrary set forth above, the Borough
shall not be responsible for any defense or indemnification under
any of the following conditions (this list is not exhaustive):
(1)
If any policy of liability insurance or legal defense fund (e.g.,
PBA Legal Defense Fund) is available for defense and/or indemnification;
(2)
Where the official or municipal officer is served with any claim,
summons, complaint, process, notice, demand or pleading and the employee
fails to deliver, within 20 calendar days of the receipt thereof,
the original or exact copy thereof to the employee's department
head, the Borough Administrator or the Borough Attorney;
(3)
Where the official or municipal officer fails to fully cooperate
with the Borough in the preparation or defense of the action or proceeding;
and
(4)
Where the official or municipal officer refuses to accept representation
by an attorney assigned by the Borough.
H.
This section shall take effect upon final passage and publication
in accordance with law and be effective and cover all present and
future claims, actions, proceedings, judgments and awards.
A.
The Borough of Hasbrouck Heights may defray the costs of defending
any criminal action against any official or municipal officer (if
the underlying allegations of said criminal action reasonably relate
to or arise from the official's or officer's execution of
their official duties), provided that:
(1)
It is authorized by state statute, municipal ordinance and by resolution,
and provided that the criminal proceedings have been dismissed or
result in a final disposition in favor of the Borough official or
municipal officer; and
(2)
The Mayor and Council determines that there is no good cause to dismiss
or discipline or censure the official or municipal officer arising
out of the incident or related incidents of the criminal proceedings.
B.
The Borough of Hasbrouck Heights may provide for the defense of any
criminal action against any official or municipal officer, provided
that it is authorized by state statute, municipal ordinance and by
resolution and such defense is not herein otherwise limited or covered
by another legal defense fund or any policy of insurance.
The Mayor and Council may not approve indemnification of the
defense of any action (this list in not exhaustive) if:
A.
The act or omission complained of was not within the scope of employment
or authority of the Borough official or municipal officer.
B.
The act or omission complained of constitutes or there is reasonable
evidence presented that suggests it may constitute in the reasonable
opinion of the Mayor and Council actual fraud, willful misconduct
or actual malice.
C.
The defense of the action or proceeding would create a conflict of
interest or the perception of a conflict of interest between the Borough
and the official or municipal officer involved.
D.
The official or municipal officer has failed to deliver to the Mayor
and Council, within 20 calendar days of the time he or she is served
with any summons, complaint, process, notice, demand or pleading,
the original or copy of such document or thereafter fails to cooperate
with the Borough in the defense of the matter.
E.
The official or municipal officer fails to request the defense of
any action.
F.
The action for which indemnification is sought was brought by the
Borough against the official or municipal officer or was initiated
because of a complaint made or supported by the Borough.
If the Mayor and Council determines to provide a defense as
authorized in this section (this list is not exhaustive), it may do
so by any of the following:
A.
The Borough Attorney, if the Borough Attorney and the employee or
official requiring defense determine that there is no ethical conflict
created by said representation; or
B.
Hiring an attorney of the Borough's choice and paying the same
directly; or
C.
Reimbursing the official or municipal officer for reasonable attorneys'
fees (as reasonable is determined by the Borough Attorney) expended
or obligated to be expended by such official in the defense of the
action at the current municipal rate charged by attorneys working
for the Borough.
In addition to the provisions hereof, all officials and employees
of the Borough 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.
