For the purposes of this chapter, unless the context clearly
indicates a different meaning, the following terms shall have the
meanings indicated:
MUNICIPAL OFFICIAL
A present or former municipal employee, appointee, official,
professional appointee, elected official or member of the various
boards, agencies and commissions of the Borough of Rockaway, whether
full- or part-time, appointed, elected or hired. The terms of this
chapter and the definitions of "official," "employee" and "appointee"
are to be construed liberally in order to effectuate the purposes
of this chapter except that the terms shall not mean a) any person
who is not a natural person; b) any person while providing goods or
services of any kind under any contract with the Borough except for
services provided pursuant to an employment contract or a professional
services contract; or c) any person while providing legal, engineering,
accounting or other professional services for compensation if the
action involves professional negligence and is otherwise covered by
the person's professional liability insurance policy or unless
said person is a full-time employee of the Borough of Rockaway. The
use of the terms "official," "employee" or "appointee" shall include
all such persons even if not specifically stated in this chapter.
Pursuant to the provisions of N.J.S.A. 59:10-1 et seq., and
subject to the provisions of this chapter, the Borough of Rockaway
is authorized to and shall provide for the defense of actions brought
against its municipal officials, employees and appointees; shall indemnify
such officials, employees, and appointees to the extent permissible
by law; and shall save harmless and protect such persons from financial
loss resulting from litigation. Such indemnification shall arise out
of any action or legal proceeding of a noncriminal nature directly
related to, or incidental to, the performance of the duties of the
position or office held by such municipal official, employee or appointee.
Pursuant to N.J.S.A. 59:10-4, the indemnification and defense provided
for in this chapter shall include exemplary or punitive damages resulting
from the official's, employee's, or appointee's civil
violation of state or federal law, provided that such violation does
not constitute actual fraud, actual malice, willful misconduct or
an intentional wrong as may be adjudicated by a court of competent
jurisdiction.
The Borough shall not defray the cost of defending any criminal
action against any municipal official except as may be authorized
by state statute or other municipal ordinance or resolution of the
Borough of Rockaway, and in those circumstances, the responsibility
for defraying the cost of defending such employee shall be applicable
only when such criminal proceeding shall have been dismissed or shall
have resulted in a final disposition in favor of the municipal official.
However, should the Mayor and Borough Council determine that there
is good cause to dismiss the employee arising out of the incident(s)
giving rise to the criminal prosecution, the Borough will not reimburse
the municipal employee for legal defense and costs in defending this
suit, even though criminal proceedings against the employee may be
dismissed or the employee found not guilty.
The Borough shall not be obligated to provide reimbursement
in the following instances:
A. Where the act or omission was not within the scope of the municipal
official's employment or authority.
B. Where the act or omission complained of was because of actual fraud,
willful misconduct, actual malice or the commission of a crime.
C. Where the legal proceeding is instigated or brought by the Borough
of Rockaway against the municipal official.
D. Where the legal proceeding involves a question concerning the election
laws.
E. Where the action is brought against the Borough by the municipal
official. If any such legal proceeding shall be dismissed or finally
determined in favor of the municipal official or employee, the official
or employee shall be reimbursed for the expense of the defense, providing:
(1) The
employee proves that the act or omission was within the scope of employment
or authority; and
(2) The
Borough fails to prove the act or omission complained of was because
of actual fraud, willful misconduct or actual malice.
F. Where the defense of the action or proceeding would constitute a
conflict of interest between the Borough and the municipal official.
G. Where the defense of the action or proceeding is covered by an insurance
policy or policies; however, the Borough shall be responsible for
the cost of the deductible.
H. Where the person is providing legal, accounting or engineering services
for compensation and the legal defense is covered by the person's
professional liability insurance. However, the Borough shall be responsible
for the cost of any deductible of the employee's professional
liability insurance policy.
I. The municipal official has failed to fully cooperate with the defense.
J. Where the act or omission is in violation of the New Jersey Local
Government Ethics Law, N.J.S.A. 40A:9-22.1 et seq., or any ethics
code adopted pursuant to the statute.
The Borough shall have exclusive control over the representation
of the municipal official, and such person shall cooperate fully with
the Borough and the designated attorney; provided, however, that the
municipal official may at any time at the municipal official's
option take control of the representation by waiving all rights to
indemnification and all rights to payment for the defense costs.
The amount the Borough is obliged to reimburse the municipal
official shall be reduced by any insurance coverage payable to the
municipal official by the net amount (that is, any recovery less attorney's
fees, disbursements and court costs) of any money received by the
municipal official in any counteraction against the person or persons
bringing the action against him or her.
If the legal proceeding is terminated by an agreement among
or between the parties, then the Borough shall not be obligated to
reimburse the municipal official unless the Borough approves the settlement
agreement.
If the municipal official files a counterclaim or cross-claim
in the legal proceedings, the Borough shall not be obligated to reimburse
for any attorney's fees or court costs attributable to such action.
The obligation of the Borough to reimburse a municipal official
for expenses shall arise upon the official incurring the expense for
the official's defense of the legal proceedings and shall be
payable from time to time upon presentation of vouchers by the official
for the services rendered and cost incurred.
If any article, section or subsection of this chapter is declared
for any reason to be unconstitutional or invalid by a court of competent
jurisdiction, such provision(s) shall be deemed severed from the remainder
of the chapter and shall not affect the enforceability of the remainder
of the chapter.
Any and all ordinances or parts thereof inconsistent with the
provisions of this chapter are hereby repealed to such extent as they
are so in conflict or inconsistent; provided, however, that the adoption
of this chapter shall not prevent or bar the continuance or institution
of any proceedings for offenses heretofore committed in violation
of any existing ordinance of the Borough of Rockaway.