[Added 3-28-1995 by Ord. No. 1887]
It is the intent and purpose of this article to provide for the defense of actions against and the indemnification of public employees for civil actions, as permitted by N.J.S.A. 59:10-1 et seq.
For the purpose of this article, unless the context clearly indicates a different meaning, the following words and phrases shall have the meanings set forth:
- Coverage afforded by insurance policies of every kind whether the premiums be paid by the Township, the public employee or someone on his/her behalf.
- PUBLIC EMPLOYEE
- Any officer, employee, board or committee member appointed or hired by the Township Manager whether full-time or part-time. The term shall also include any person elected by the voters to fill any official position in the Township or any person subsequently appointed to fill such a position.
The Township shall provide for the defense of any action brought against a public employee on account of any act or omission in the scope of his employment, and this obligation shall extend to any cross actions, counterclaims or cross complaints against such an employee. Where the allegations against the public employee include allegations that the act or failure to act was because of actual fraud, willful misconduct or actual malice, the Township shall provide for the defense on the express condition that the public employee shall execute a reimbursement agreement that shall provide that in the event the public employee shall be adjudicated or admit to have acted or failed to act because of actual fraud, willful misconduct or actual malice then, in such event, the public employee shall reimburse the Township for all fees and costs incurred by the Township in providing such defense
The Township shall not provide a defense to a public employee when the Township Council determines that:
The act or omission was not within the scope of employment.
The defense of the action or proceeding would create a conflict of interest between the Township and the public employee, including:
Where 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.
Where the legal proceeding is instigated or brought by the public employee.
When public employee failed to deliver to the Township Clerk, within 10 calendar days after the time he/she is served with any summons, complaint, process notice, demand or pleading, the original or a copy of the same.
The public employee has failed to cooperate fully with the defense.
A public employee shall, within 10 calendar days of the time he/she is served with any summons, complaint, process notice, demand or pleading, deliver the original or a copy thereof to the Township Clerk.
The governing body of the municipality shall provide the public employee with the necessary means for the defense of such action which may include assigning the Township Attorney or any attorney for any board or committee of the Township, permitting the insurance carrier to assign counsel, or payment to an attorney of the public employee's own choice at a rate not to exceed that set forth by Township ordinance.
The public employee shall be obliged to cooperate with the Township in the conduct of his/her defense. The refusal of the public employee to cooperate with the Township shall terminate the Township's obligation to defend the public employee.
In any case where the Township is required to provide a defense under this chapter, the Township shall pay or shall reimburse the public employee for:
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.
The amount of indemnification shall be reduced by the amounts paid by any insurance coverage and/or any amounts received by the public employee in any counteraction against the person or person bringing the action against him/her.
The Township shall not indemnify the public employee for exemplary damages and punitive damages.
If the acts alleged in the action ultimately are determined to constitute actual fraud, actual malice, willful misconduct or an intentional wrong, the public employee shall be required to reimburse the Township for any costs and fees expended by the Township in defense of the public employee.
If the public employee files a counteraction in the legal proceedings, the municipality shall not be obligated to reimburse him/her for any attorney's fees or court costs attributed to such counteraction.
To the extent that N.J.S.A. 40A:14-155 provides broader indemnification to members of the municipality's Police Department, that statute shall supersedes this article.
Any legal action which may be covered by this article which has not been reduced to final judgment as of the date of passage shall be covered by the terms of the article.