[HISTORY: Adopted by the Township Committee of the Township of Bethlehem 6-15-1989
as Ord. No. 248-89; amended 8-18-1994
by Ord. No. 270-94. Other amendments noted where applicable.]
GENERAL REFERENCES
Officers and employees — See Ch. 32.
For the purposes of this chapter, unless the context clearly indicates
a different meaning, the following words and phrases shall have the meaning
set forth:
Coverage afforded by insurance policies of every kind whether the
premiums be paid by the township, the municipal official or someone on his/her
behalf. The township shall not be obligated to carry such insurance.
Any present or former officer, employee, board or committee member
appointed or hired by the Township Committee of the township, whether full-
or part-time. The term shall also include any person elected by the voters
of the township to fill any official position in the township, or any person
subsequently appointed to fill such position.
Pursuant to the provisions of N.J.S.A. 59:10-1, et seq. and subject
to the provisions of this chapter, the Township of Bethlehem is authorized
to provide for the defense of actions brought against its municipal officials
and shall indemnify such officials to the extent permissible by law and hereinafter
set forth and shall save harmless and protect such persons from financial
loss resulting from litigation. Such indemnification shall arise out of any
action or legal proceeding of a noncriminal nature directly related, or incidental
to, the performance of the duties of the position or office held by such municipal
officials. The Township of Bethlehem may indemnify an employee for exemplary
or punitive damages resulting from the employee's civil violation of
state or federal law if, in the opinion of the Township Committee, the acts
committed by the employee upon which damages are based did not constitute
actual fraud, actual malice, willful misconduct or an intentional wrong.
B.
A resolution shall be adopted to appoint counsel for
the defense and determine counsel fees. Without a written resolution of the
Committee, the hourly rate shall not exceed the then rate paid to the Township
Attorney. The township may, at its option, make payment directly to the attorney,
upon invoices submitted to the township as the matter progresses.
C.
Nothing in this chapter shall preclude the township and/or
Township Attorney from demanding and reviewing periodically any costs and
attorney's fees in connection with the defense of the municipal official.
In the event that a dispute over attorney's fees arises, the township
reserves the right to submit the dispute to the fee arbitration committee
of the district or pursue any other course of legal action.
The amount the township is obligated to reimburse the municipal official
shall be reduced by any insurance coverage payable to the municipal official
and by the net amount (recovery less attorney's fees, disbursements and
court costs) of any money received by the municipal official in any counteraction
against the person or persons bringing the action against him/her.
A municipal official shall be entitled to indemnification or reimbursement
pursuant to this chapter, provided that:
A.
Within 10 calendar days of the time he/she is served
with any summons, complaint, process, notice, demand or pleading, he/she delivers
the original or a copy thereof to the Municipal Attorney.
B.
The municipal official cooperates with the township in
the conduct of his/her defense.
C.
Legal counsel, available to the township through any
insurance coverage, for the municipal official is accepted.
D.
In the event that the Township Committee wishes to utilize
the Township Attorney or the attorney for any board or committee of the township
to defend an action, the municipal official shall be obligated to be represented
by that attorney unless there is a conflict of interest.
E.
The refusal of the municipal official to cooperate with
the township or assigned attorney shall terminate the township's obligation
to reimburse the municipal official.
If the legal proceeding is terminated by an agreement amongst the parties,
then the township shall not be obligated to reimburse the municipal official
unless the township approves the settlement agreement.
If the municipal official files a counteraction in the legal proceedings,
the township shall not be obligated to reimburse him/her for any attorney's
fees or court costs attributable to such counteraction, and the attorney designated
by the township shall not be required to prosecute it unless it has been authorized
by the township. The official or his/her attorney shall include a counterclaim
for harassing and vexatious litigation and a request for damages and attorneys
fees.
The township shall not be obligated to provide reimbursement in the
following instances:
A.
Where the act or omission was not within the scope of
employment of the municipal official.
B.
Where the act or omission complained of was because of
actual fraud, willful misconduct or actual malice.
C.
Where the legal proceeding is instigated or brought by
the Township of Bethlehem against the municipal official.
D.
Where the legal proceeding involves a question concerning
election laws.
E.
Where the action is brought against the township by the
municipal official.
To the extent that N.J.S.A. 40A:14-155 provides broader indemnification
to members of the Township of Bethlehem's Police Department, if any,
that statute shall supersede this chapter.
If the township elects to pay the expenses incurred in providing a defense,
or any part thereof, prior to final determination of the legal proceedings,
the municipal official shall reimburse the township for the sums paid out
in the event that it is determined that the township was not obligated to
provide for such defense pursuant to this chapter. The municipal official
shall enter into an agreement with the township providing for said reimbursement
prior to payment of these expenses by the township.
