[HISTORY: Adopted by the City Council of the City of Cape May 9-21-2004 by Ord. No. 07-2004 (Sec. 2-54 of the 1997 Revised General Ordinances). Amendments noted where applicable.]
As used in this chapter, the following terms shall have the meanings indicated:
OFFICIAL, OFFICER and EMPLOYEE
Any person elected or appointed to any public office, agency or body of the City or employed or retained by the City for any office, agency or body thereof, whether such person serves in a paid or unpaid capacity, and shall include any member or officer of a volunteer fire company or force in accordance with N.J.S.A. 40A:14-28 and any appointed fire police therefrom pursuant to N.J.S.A. 15:8-4.
Whenever an official, officer or employee of the City is a defendant, in either an official and/or individual capacity, in any action or legal proceeding arising out of or incidental to the performance of his or her duties, the governing body shall provide the official, officer or employee with the necessary defense or, at his or her option, means for defense, of such action or proceeding and shall also hold such official, officer or employee 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 City itself against the official, officer or employee or in a criminal proceeding instituted as a result of a complaint on behalf of the City.
B. 
Where the official, officer or employee has been specifically found by the trier of facts in proceedings, civil or criminal, to have acted with actual fraud, actual malice, or willful misconduct.
C. 
Where the official, officer or employee is found to have willfully acted in violation of the City personnel ordinances or regulations.
The City Council may refuse to provide for the defense and indemnification if it determines that:
A. 
The act or omission was not within the scope of the person's employment or official duties.
B. 
The defense of the action or proceedings by the City would create a conflict of interest between the City and the official, officer or employee.
C. 
It is not deemed appropriate pursuant to the authority conferred in N.J.S.A. 59:10-4.
A. 
An official, officer or employee requesting defense of any action or claiming indemnification under this chapter shall cooperate fully and in good faith with the City and with any attorneys, adjustors, investigators, experts or technical personnel engaged for purposes of defense in the preparation and presentation of the defense to such action or the settlement or other disposition thereof. If such official, officer or employee shall neglect, fail or refuse to cooperate as aforesaid, the City Council, after hearing on 10 days' written notice to the official, officer or employee and for cause, may declare all rights created under this chapter for the benefit of such official, officer or employee to be forfeited and terminated. Any such vote shall be by majority vote of the full membership of the City Council.
B. 
Whenever the City provides the defense of an official, officer or employee pursuant to this chapter, the City may assume exclusive control of the representation of such official, officer or employee.
Nothing in this chapter shall be deemed to authorize the City to pay for punitive or exemplary damages or damages resulting from the commission of a crime.
An official, officer or employee shall not be entitled to indemnification or the cost of defense under this chapter unless, within 10 days of the time such official, officer or employee is served with any summons, order to show cause, complaint, process, notice, demand or pleadings, he or she delivers the same, or a certified copy thereof, to the City Clerk. Upon receipt of same, the City Clerk shall forthwith notify all members of the City Council and the City Solicitor of the receipt of same. The aforesaid time period for receipt of notice of suit may be extended, for cause, by the affirmative vote of a majority of the full membership of City Council.
In the event that this chapter conflicts with any existing negotiated contract between the City and its employees, the terms of the contract applying to the respective employee shall govern.