[HISTORY: Adopted by the Town Council of
the Town of Ocean View 1-9-1996 by Ord. No. 83. Amendments noted where
applicable.]
No person, joint venture, association, partnership,
corporation, limited liability company, trust, guardian or other legal
entity, acting on its own behalf or on behalf of any other legal entity,
shall institute or file any lawsuit, legal action or claim seeking
recovery of damages grounded in tort, in any court of law or equity,
in this or any other state, against the Town of Ocean View or any
of its employees, as defined in 10 Del. C. § 4010(1), unless
notice of the occurrence forming the basis of the claim or action
is given to the Town within one year of the date of occurrence.
A.
Such notice shall be in writing and shall be delivered
to the Town Manager at the Town Hall in Ocean View, Delaware. The
notice shall particularly describe the occurrence and the nature of
the claim, shall state the date and place of the occurrence, and the
name address of each claimant for whom the notice is being given.
B.
Such notice shall be deemed to be a condition precedent
to the filing of suit, and failure to provide such notice within one
year of the date of the occurrence shall be an absolute defense against
any such claim, action, or suit.
[Added 3-10-2020 by Ord. No. 367]
A.
For purposes
of this chapter, the term "Town officers and employees" shall include
the Mayor and Council of the Town of Ocean View, all employees, appointed
officials, including all appointed members of commissions, boards,
committees, and working groups established by the Town Council.
B.
The Town
shall defend any Town officer or employee against a civil, administrative,
criminal or investigative action or claim, or other proceedings, brought
in any court, quasi-judicial, or administrative proceeding, arising
out of or related to the performance by said Town officer or employee
of his public official duties; or in any criminal action arising from
the performance of his duties which action does not allege official
misconduct, profiteering, bribery, receiving unlawful gratuities,
improper influence or other abuse of his office or employment. The
Town shall not be obligated to defend a Town officer or employee if
the claim, action, charge, or the like, is otherwise covered by appropriate
insurance or was brought by or with the concurrence of the Town against
the Town officer or employee.
C.
A Town
officer or employee who is held liable for the payment of any claims
arising out of a civil action or settlements, judgments, expenses,
costs and awards of attorney's fees arising therefrom shall be entitled
to indemnification therefor where the claim shall have been determined
by the Town Solicitor, subject to the approval of the Town Council,
to have resulted from activities which:
(1)
Were
done in good faith;
(2)
Were
done in the reasonable belief that such activities were in the best
interest of the Town and in the furtherance of the official practices
and policies of the Town;
(3)
Were
within the scope of authority of the person so acting;
(4)
Were
within the course of employment of the person so acting; and
(5)
Were
not willful, malicious or wanton.
D.
In the
event of a monetary settlement, the Town Council shall first approve
the amount and terms of the settlement before the right to indemnification
shall vest. Such determination shall be made:
E.
The Town Council may authorize by resolution the payment of legal fees incurred by a Town officer or employee for representation in a criminal action, if the charge arose out of or in the course of Town employment. Council shall review an application for reimbursement based upon the criteria set forth in Subsection C. No payment under this section may be authorized where the employee has been found guilty after trial and any appeal or has entered a plea of guilty or nolo contendere to a crime involving official misconduct, profiteering, bribery, receiving unlawful gratuities, improper influence or other abuse of his office or employment.
F.
The expenses incurred by a Town officer or employee in defending an action, suit, or proceeding, may be paid by the Town in advance of the final disposition of such action, suit or proceeding, subject to repayment by the Town officer or employee unless it shall be determined that he is entitled to be indemnified by the Town as set forth in Subsection C.
G.
By the
adoption of this section, the defense of governmental or sovereign
immunity shall not be considered waived by the Town, its agencies,
boards, commissions, departments or any employee or officer of the
Town as provided for in the Delaware County and Municipal Tort Claim
Act or at common law.
