[HISTORY: Adopted by the Mayor and Council of the Borough of Franklin Lakes by Ord. No. 944 (Sec. 2-49 of the 1988 Code); amended in its entirety 5-18-2010 by Ord. No. 1478. Subsequent amendments noted where applicable.]
It is the intent and purpose of this section to provide for the indemnification and defense of actions against certain public officials and employees as described herein. The terms of the chapter, and the definition of official, employee, and appointees are to be construed liberally in order to effectuate the purposes of this chapter.
For the purposes of this chapter, 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 Borough, the municipal official, or someone on their behalf.
- MUNICIPAL OFFICIAL
- Any present or former officer or official, employee, Council member, Mayor, Board member, or other individual appointed or hired by the Mayor or the Borough Council or the Borough Administrator, whether full- or part-time. The term shall also include any volunteer serving the Borough on the Recreation Commission, or as a coach or assistant on a team organized under the auspices of the Recreation Commission, or a member of the Volunteer Fire Department, or a member of the Ambulance Corps. The term shall also include any person elected by the voters to fill any official position in the Borough, or any person subsequently appointed to fill such position.
Except as hereinafter provided, the Borough of Franklin Lakes (hereinafter known as the "Borough") shall, upon the request of any present or former official, employee, or appointee of the Borough, provide for indemnification and legal defense of any civil action brought against said person or persons arising from an act or omission falling within the scope of their public duties. For purposes of this chapter, the duty and authority of the Borough to defend and indemnify shall extend to a cross-claim, third party claim or counterclaim against said person. In any case where the Borough is required to provide a defense under this chapter, the Borough shall pay for the following:
In addition, in any case where the Borough would be required to provide a defense under this chapter, except for the fact that such defense is provided for by insurance, either through a policy of the Borough or the individual, the Borough shall provide indemnification as aforesaid, but only to the extent that liability exists which is not covered by insurance, and not excepted by other sections of this chapter.
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 employee's civil violation of state or federal law if the acts committed upon which the damages are based did not constitute actual fraud, actual malice, willful misconduct, or an intentional wrong.
Excluded from the definition of official, employee, and appointee, and excluded from coverage under this chapter, shall be:
Any person who is not a natural person;
Any person while providing goods or services of any kind under any contract with the Borough, except an employment contract;
Any person while providing legal or engineering services for compensation, unless said person is a full-time employee of the Borough; and
Any person who, as a condition of his or her appointment or contract, is required to indemnify and defend the Borough and/or secure insurance.
In any other action or proceeding, including criminal proceedings, the Borough may provide for the defense of a present or former official, employee, or appointee if the Borough concludes that such representation is in the best interest of the Borough, and that the person to be defended acted, or failed to act, in accord with the standards set forth in this chapter.
Whenever the Borough provides for the defense of any action set forth herein, and as a condition of such defense, the Borough may assume exclusive control over the representation of such persons defended, and such person shall cooperate fully with the Borough.
The Borough may provide for the defense pursuant to this chapter by authorizing its attorney to act on behalf of the person being defended, or by employing other counsel for this purpose, or by asserting the right of the Borough under any appropriate insurance policy that requires the insurer to provide defense.