Except as hereinafter provided, the Borough of Bergenfield, 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.
The terms of this chapter and the definition of "official," "employee"
and "appointee" are to be construed liberally in order to effectuate the purposes
of this chapter, except that these 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 an employment contract;
c) any person while providing legal or engineering services for compensation
unless said person is a full-time employee of the Borough; and d) 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.
The Borough shall provide for defense of and indemnify any present or
former official, employee or appointee of the Borough who becomes a defendant
in a civil action, if the person or persons involved: a) acted or failed to
act in a matter in which the Borough has or had an interest; b) acted or failed
to act in the discharge of a duty imposed or authorized by law; and c) acted
or failed to take action in good faith. For purposes of this chapter, the
duty and authority of the Borough to defend and indemnify shall extend to
a cross-claim or counterclaim against said person.
The Borough shall not indemnify any person against the payment of punitive
damages, penalties, or fines, but may provide for the legal defense of such
claims in accord with the standards set forth herein. The Borough may refuse
to provide for the defense and indemnification of any civil action referred
to herein, if the Borough of Bergenfield determines that: a) the act or omission
did not occur within the scope of a duty authorized or imposed by law; b)
the act or failure to act was the result of actual fraud, willful misconduct
or actual malice of the person requesting defense and indemnification; or
c) the defense of the action or proceeding by the Borough would create a conflict
of interest between the Borough and the person or persons involved.
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 of Bergenfield 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 person 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 in 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.