[HISTORY: Adopted by the Mayor and Council of the Borough of Norwood 8-14-2001
by Ord. No. 01:17; amended in its entirety 5-4-2004
by Ord. No. 04:07. Subsequent amendments noted where applicable.]
The following terms, when used in this chapter shall be defined as set
forth in this section. Any term that is not defined in this chapter shall
be defined in accordance with the provisions of the New Jersey Tort Claims
Act, N.J.S.A. 59:1-1 et seq., and the cases decided thereunder.
The Attorney from the Borough of Norwood.
All appointed or elected employees, agents, officers and volunteers
of the Borough of Norwood.
Any civil or administrative action that is pending in the New Jersey
Supreme, Superior or Tax Courts; the courts of the United States; any other
court of competent jurisdiction; and any state, federal or local administrative
body or agency, and that is arising out of and directly related to a public
official's lawful exercise of his or her authority or duty in the furtherance
of the public official's authority or duty.
Any written or oral expression of the intent of any person to prosecute
a criminal offense or an ethical offense, institute a criminal proceeding
or an ethics proceeding or file a civil suit against any Borough official,
either in the Borough official's official capacity or individual capacity,
for acts, omissions or events arising out of or connected, directly or indirectly,
with the performance of the Borough official's duties.
Any offense that is defined as a crime in the United States or New
Jersey Criminal Code, as well as all quasi-criminal offenses whether defined
by federal or state laws or regulations or any county or municipal ordinance.
Any criminal, quasi-criminal or other law enforcement proceeding
that is pending in any state or federal court regarding a criminal offense
arising out of and directly related to the public official's lawful exercise
of his or her authority or duty in the furtherance of the public official's
authority or duty.
Any violation of the Local Government Ethics Law, N.J.S.A. 40A:9-22.1
et seq., and/or any Borough Ethics Ordinance adopted pursuant thereto.[1]
Any proceeding that is pursued against a Borough official alleging
an ethical offense arising out of and directly related to the public official's
lawful exercise of his or her authority or duty in the furtherance of the
public official's authority or duty.
The Mayor and Council of the Borough of Norwood.
[1]
Editor's Note: See Ch. 20, Ethics Board, Municipal.
As to civil suits in which a Borough official is named as a party, the
Borough shall defend and/or provide a defense for the Borough official as
to all claims, either through the Borough Attorney or his or her designee,
through legal counsel provided by the Borough's insurance carrier, or
by permitting the Borough official to retain legal counsel chosen by the Borough
official. If the Borough official is authorized by the governing body to retain
legal counsel, the Borough will pay only the reasonable cost of the representation,
including investigation, costs and reasonable legal fees, as further defined
in this chapter.
As to civil suits in which a Borough official is a party, the Borough
shall indemnify and hold harmless the Borough official for all damage awards,
verdicts and any other forms of civil penalty or judgment not covered by insurance,
unless it is determined that the Borough should not be responsible on account
of the factors set forth in this chapter or any other applicable state law.
The Borough will not provide a defense for Borough officials who are
charged with criminal offenses. The governing body may, however, authorize
the Borough to reimburse the Borough official for the reasonable cost of the
defense of a criminal proceeding, including investigation, costs and reasonable
legal fees, as further defined in this chapter, provided that the criminal
proceeding is dismissed or is finally determined in favor of the Borough official.
The Borough will not provide a defense for Borough officials who are
charged with ethical offenses. The governing body may, however, authorize
the Borough to reimburse the Borough official for the reasonable cost of the
defense of ethics proceeding, including investigation, costs and reasonable
legal fees, as further defined in this chapter, provided that the ethics proceeding
is dismissed or is finally determined in favor of the Borough official. In
addition, the Borough may indemnify a Borough official if the Mayor and Council,
by a majority vote, finds that a Borough official who is found to have committed
an ethical offense acted in a manner that was reasonably debatable at the
time that the violation occurred and that the Borough official's actions
or omissions did not constitute willful misconduct or an intentional wrong.
The governing body, with the advice of the Borough Attorney, shall determine
what costs, expenses and legal fees are reasonable under the facts and circumstances
of each claim, civil suit or criminal proceedings. The Borough only will pay
or indemnify the Borough official for legal fees that are based on reasonable
hourly rates, and will not pay retainers to attorneys or investigators. The
governing body will determine, on a case-by-case basis, the reasonable hourly
rate to be paid to the legal counsel who is retained by a Borough official
as authorized by this chapter.
Any Borough official who receives notice of a claim or is named as a
party in any civil suit, ethics proceeding, or criminal proceeding either
in his or her official capacity or in an individual capacity for events arising
out of or connected directly or indirectly with the performance of his or
her duty as a Borough official, shall promptly advise the governing body and
the Borough Attorney of the claim or that the civil suit or criminal proceeding
has been commenced and shall supply to the governing body and the Borough
Attorney a copy of any and all notices and pleadings pertaining to the matter.
The Borough official shall thereafter cooperate with the appropriate Borough
agents, attorneys, servants and employees in effectuating the provisions of
this chapter.
The Borough will not provide a Borough official with a defense or indemnification
in the following instances:
A.
If the act or omission of the Borough official constitutes
a criminal offense, ethical offense, actual fraud, actual malice, willful
misconduct or an intentional or wrongful act or omission;
B.
If the act or omission of the Borough official is outside
the scope of the Borough official's employment, duties or official capacity;
C.
If the act or omission of the Borough official does not
arise out of and is not directly related to the Borough official's lawful
exercise of his or her authority or duty in the furtherance of the Borough
official's authority or duty;
D.
If the action or proceeding has been brought by the Borough
itself against the Borough official;
E.
If the Borough official has failed to substantially cooperate
with the Borough and its agents, servants, attorneys and employees in connection
with the matter;
F.
If it is not deemed appropriate by the governing body
pursuant to the provisions of the New Jersey Tort Claims Act, N.J.S.A. 59:10-1
et. seq., or any other statute or applicable law; or
G.
If insurance coverage is available to pay any or all
of the legal costs or judgments, to the extent of such coverage.
If, pursuant to the terms of this chapter or any other applicable law,
the Borough has paid any legal fees, defense costs or damages on account of
a Borough official and it is later determined that the payment of same was
improper or was disallowed under the terms of this chapter or any law, or
the Borough official is compensated for these payments by any third party,
then the Borough official shall, within 30 days of the receipt of the Borough's
demand, reimburse to the Borough the full amount of the improper or disallowed
payments made by the Borough.
The Borough shall not reimburse any Borough official for any punitive
or exemplary damages or any damages resulting from the commission of a criminal
offense or an ethical offense by any Borough official. The Borough may, however,
indemnify a Borough official for exemplary or punitive damages if, in the
judgment of the governing body, the acts committed by the Borough official
upon which these damages are based did not constitute actual fraud, actual
malice, willful misconduct or an intentional wrong.
When the Borough provides a defense of a Borough official pursuant to
this chapter, the Borough may assume exclusive control of the representation
of the Borough official to the extent permitted by law. If the Borough permits
the Borough official to retain legal counsel, the governing body may limit
the extent of the participation of or the payment to the legal counsel if,
in the opinion of the governing body, this limitation is reasonable under
the circumstances and will not prejudice the Borough official.
Nothing contained in this chapter shall prevent the Borough from bifurcating
its treatment as to any claim, civil action, or criminal proceeding, both
as to whether and how it will provide a defense and/or indemnification. Accordingly,
the Borough may provide a defense and/or indemnification for some allegations
against a Borough official, but not as to others, and may provide the defense
in different forms as to different allegations.
This chapter is not intended to conflict with any of the provisions
of the New Jersey statutes that now require or that subsequently require the
Borough to provide for the defense and indemnification of any public officials
specified therein, including but not limited to police officers, firefighters
and the Municipal Clerk. If any of the provisions of this chapter are in conflict
with any provisions of these statutes, including but not limited to those
that apply to police officers (N.J.S.A. 40A:14-155), firefighters (N.J.S.A.
40A:14-28), and the Municipal Clerk (N.J.S.A. 40A:9-134.1), the provisions
of applicable New Jersey statutes, as interpreted by the courts of this state,
shall prevail over the terms and conditions of this chapter, but only to the
extent of any inconsistency between the terms of the applicable statute and
this chapter.
