[HISTORY: Adopted by the Township Committee
of the Township of Lebanon 4-7-2004 by Ord. No. 2004-04.[1] Amendments noted where applicable.]
[1]
Editor’s Note: This ordinance also repealed former Ch.
26, Defense and Indemnification of Officers and Employees, adopted
by Ord. No. 12-1979 (Sec. 2-7 of the 1985 Revised General Ordinances),
as amended.
As used in this chapter, the following terms shall have the
meanings indicated:
Any person, presently or in the future, appointed to the
Lebanon Township Planning Board or the Lebanon Township Board of Adjustment.
An appointed official includes alternates of either Board, as well
as officials appointed for a full term or for the purpose of filling
an unexpired term, and whether or not such official is compensated
for the position. The protections and benefits of this chapter shall
apply only to those officials specifically defined herein, and not
to an official of any other board, body, authority, commission, or
committee.
Any report, formal or informal, of a demand for compensation
for damages for injuries allegedly caused by an elected official or
appointed official as defined herein. The term shall include, but
shall not be limited to, all demands for damages before any court
or agency for bodily injury, property damage and violation of civil
or constitutional rights, including false arrest, inverse condemnation
and causes of action arising under 42 U.S.C. § 1981 et seq.
(Civil Rights Act of 1871), Civil Rights Act of 1964, Civil Rights
Act of 1991, the New Jersey Law Against Discrimination, and all other
federal, state, and/or local laws under which a claim can be made
before any court, judicial or administrative agency, body, board,
commissioner, or committee having jurisdiction over the State of New
Jersey.
Any person, presently or in the future, elected to the Lebanon
Township Committee, whether elected for a full term or for the remaining
portion of an unexpired term, and whether or not such official is
compensated for the position. For the purposes of this chapter, "elected
official" shall also mean any person appointed to complete the unexpired
term of an elected official who has failed for any reason to complete
that elected official's term in office. The protections and benefits
of this chapter shall apply only to those officials specifically defined
herein, and not to an official of any other board, body, authority,
commission, or committee.
It is the intent and purpose of this chapter to provide for
the defense of actions against and the indemnification of elected
Township officials and certain other officials for civil actions as
permitted by N.J.S.A. 59:10-1 et seq., or any other federal, state
and/or local law, and/or as permitted by this chapter. This chapter
shall be liberally construed to provide the fullest defense and indemnification
allowed by law.
Whenever an elected official or appointed official of the Township
of Lebanon is a named defendant in any civil action or civil proceeding
arising out of and directly related to the legal performance of his
or her duties as an elected official or appointed official of the
Township, the Township shall provide such elected official or appointed
official with the necessary and reasonable defense and shall hold
such elected official or appointed official harmless and indemnify
him or her from the payment of any settlement or judgment resulting
from the proceedings, except as otherwise set forth in this chapter.
The Township shall indemnify elected officials and appointed officials
from all civil claims, including defense costs, if and only if such
official establishes that the act or omission upon which the claim
or judgment was based occurred within the scope of his or her lawful
employment as an elected official or appointed official of the Township
and that actual fraud, actual malice or willful or wanton misconduct
was not the cause of such elected official or appointed official's
actions. The following sets forth situations in which the Township
shall not have a duty to defend or indemnify:
A.
When the action has been brought by the Township itself or any board,
commission or authority established as a subdivision of Township government
against such elected official or appointed official.
B.
When the elected official or appointed official has been specifically
found by a court or other competent tribunal in the proceedings to
have acted with actual fraud, actual malice or willful or wanton misconduct
while within the scope of employment, or to have acted outside the
scope of employment.
C.
When the elected official or appointed official is found to have
violated any of the Township's Code of Ethics or any code of
ethics existing by and pursuant to the laws of the State of New Jersey.
The provisions of a defense and indemnification, as set forth
in the above sections of this chapter, shall justifiably be refused
by the Township if it is the determination of the Township Attorney,
in his or her sole and absolute discretion, that:
A.
The
act or omission alleged was not within the scope of the person's
employment or official duties;
B.
The
act or failure to act alleged was because of actual fraud, willful
misconduct, actual malice, or intentional wrongdoing;
C.
There
exist policies of insurance, either obtained by the Township or otherwise,
by virtue of which the elected official or appointed official is entitled
to a defense of the action in question from any insurer, including
coverage pursuant to the JIF or MEL;
D.
It
is not deemed appropriate pursuant to N.J.S.A. 59:10-1 et seq.;
E.
The
elected official or appointed official has failed to cooperate fully
with the defense provided by the Township;
F.
Where
the legal proceeding involves questions concerning election laws;
or
G.
The
elected official or appointed official fails to notify the Township
within 14 calendar days, in writing and with copies of any documents
alerting such elected official or appointed official of the pendency
or threat of such claim, as to any action threatened against him or
her.
Counsel fees to be paid to outside counsel, other than the Township
Attorney or the attorney for any board or commission, for services
rendered in connection with a claim subject to this chapter, shall
be reasonable and shall be established by the governing body through
resolution prior to the retention of such counsel. The Township may
reimburse an elected official or appointed official for a portion
of any expense incurred prior to the final decision in the legal proceeding,
at the Township's sole discretion. The Township shall be entitled
to wait for a final determination before making a determination to
reimburse defense costs and/or honor indemnity.
Nothing in this chapter shall authorize or require the Township
to pay for punitive or exemplary damages or damages resulting from
the commission of a crime.
The decision to indemnify based upon preliminary investigation
is not final and binding upon the Township. Should facts be revealed
during the course of handling the claim, whether or not they could
have been discovered at an earlier time, that show that the elected
official or appointed official was acting in a manner which does not
entitle him or her to indemnification, the Township Attorney, in his
sole and absolute discretion, may revoke the indemnification. Further,
should the employee unjustifiably fail or refuse to cooperate in defending
the claim, indemnification may be revoked.
By accepting indemnification from the Township in accordance
with this chapter, the elected official or appointed official agrees
that the Township may perform such investigations and enter into such
negotiations on the elected official or appointed official's
behalf as the Township shall deem necessary and proper and may settle
any claims, regardless of whether the Township actually believes the
allegations may be groundless or false. In the event that the elected
official or appointed official refuses to consent to any settlement,
the Township shall be liable only for that amount for which the Township
could have settled the claim had the elected official or appointed
official consented, in the sole and absolute discretion of the Township
Attorney.
This chapter shall not create, nor shall it be construed as,
a contract of insurance between the Township and any elected official
or appointed official. The Township shall not be considered an insurer
or primary insurer for any purpose and shall not by this chapter be
obligated to settle any claim on an elected official or appointed
official's behalf or to tender its limits of coverage in order
to avoid excess liability on the elected official or appointed official's
part.
This chapter shall apply to all matters which have not been
finally resolved at the date of enactment hereof, regardless of whether
or not the acts for which damages are sought occurred before passage
of this chapter.
If the legal proceeding is terminated by an agreement among
or between the parties, then the Township shall not be obligated to
reimburse the elected official or appointed official, including legal
fees, unless the Township approves the settlement agreement prior
to its execution.
If the elected official or appointed official files a counteraction
in the legal proceedings, the Township shall not be obligated to reimburse
for any attorney fees or court costs attributable to such counteraction.
