[HISTORY: Adopted by the Township Council of the Township of Parsippany-Troy
Hills by Ord. No. 2001:9. Amendments noted where applicable.]
As used in this chapter, the following terms shall have the meaning
indicated:
Any current or former elected or appointed official, officer or member
of the boards, agencies and commissions of the Township, or employee, whether
compensated or not, whether full-time or part-time, who is or was authorized
by the Township to perform any acts or services; provided, however, that this
term does not include an independent contractor.
The Township shall provide for the defense of any civil or criminal
actions brought against a public employee arising out of any act or omission
directly related to the lawful exercise of that person's authority in the
furtherance of his or her official duties, and this obligation shall extend
to any cross-action, counterclaims or cross-complaint against such employee.
The provisions of this chapter shall not be applicable when the Township
Council determines that:
A.
The act or omission was not directly related to the lawful
exercise of that person's authority in the furtherance of his or her official
duties.
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 is provided for
by an insurance policy or policies, whether obtained by the Township or by
any other person.
D.
The public employee failed to deliver to the Township
Clerk, within 10 calendar days after the time he or she was served with the
summons, complaint, process, notice, demand or pleading, the original or a
copy of the same.
E.
The public employee has failed to cooperate fully with
the defense.
F.
The action is a disciplinary proceeding instituted against
the employee by the Township or is a criminal proceeding instituted as a result
of a complaint on behalf of the Township; provided, however, that reimbursement
for the expenses of the defense of such actions may be required under certain
circumstances as required by law.
The Township may provide any defense required of it under this chapter
through the Township Attorney or through the retention of another attorney.
The cost of retention of an outside attorney shall be provided when the defense
of the action or proceeding creates a conflict of interest between the Township
and the public employee.
A.
When the Township provides any defense required of it
under this chapter through the Township Attorney, the Township may assume
exclusive control over the representation of the public employee, and such
employee shall cooperate fully with the defense.
B.
The Township Council may approve the retention of an
outside attorney in accordance with the following conditions:
(1)
The employee does not have the right to an attorney of
his or her choice at Township expense. However, the Township Council may approve
of an attorney requested by the employee.
(2)
The attorney retained by the Township shall provide a
written retainer agreement and shall submit an affidavit of services rendered
prior to payment.
(3)
Nothing in this chapter shall prevent an employee from
retaining an attorney of the employee's choice at his or her own expense,
without reimbursement from the Township.
C.
Township Attorney responsibilities; possible conflicts.
(1)
When the outside attorney is retained, the Township Attorney
shall be directly involved with the public employee's attorney concerning
any recommendation for settlement of a civil lawsuit. The Township Attorney
shall then present any recommendation of settlement, which must be in the
best interest of the Township, to the Township Council for its approval.
(2)
Where a possible conflict exists between the Township
and the public employee, acting within the scope of his official Township
duties, and where both are named as parties in the same civil lawsuit, the
Township Attorney may decline any involvement in the matter.
(3)
In circumstances involving litigation or other legal
proceedings between two public employees qualifying for the privileges granted
herein, the Township Attorney will not be required to represent or otherwise
participate on behalf of either party.
A.
In any case where the Township is required to provide
a defense or where the employee is entitled to defense reimbursement under
this chapter, the Township shall pay or shall reimburse the public employee
for:
B.
In addition, in any case where the Township would be
required to provide a defense under this chapter, except for the fact that
such defense is provided for by insurance, the Township shall provide indemnification
as aforesaid, but only to the extent not covered by insurance. Nothing in
this chapter shall authorize the Township to pay for punitive or exemplary
damages or damages resulting from the commission of a crime, except that the
Township may indemnify an employee for exemplary or punitive damages resulting
from the employee's civil violation of state or federal law if, in the opinion
of the Township Council, the acts committed by the employee upon which the
damages are based did not constitute actual fraud, actual malice, willful
misconduct or intentional wrong.
