[HISTORY: Adopted by the Township Council
of the Township of Pohatcong as indicated in article histories. Amendments
noted where applicable.]
[Adopted 5-3-2011 by Ord. No. 11-07[1]]
[1]
Editor's Note: This ordinance also repealed former Ch.
17, Defense and Indemnification, adopted 12-13-1983, as amended.
The purpose of this chapter is to provide a uniform policy respecting
reimbursement procedures for civil lawsuits and criminal charges brought
against elected municipal officials and employees, including police
officers, of the Township of Pohatcong (collectively identified for
purposes of this chapter as "municipal official" or "official").
Whenever a civil or criminal action is instituted against an
elected municipal official or employee for any act or omission arising
out of and in the course of, and within the scope of, the 17-1/performance
of the duties of such office, the Township shall defray the cost of
defending such action as set forth below. The Township's obligation
hereunder shall be limited to those cases in which:
A.
In civil matter:
(1)
The official was acting in a matter in which the Township had an
interest; and
(2)
The official was acting in the discharge of a duty imposed or authorized
by law; and
(3)
The official was acting in good faith; and
(4)
The official is a named defendant in a matter pending before a court
of competent jurisdiction.
B.
In criminal matter:
(1)
The official/employee was acting in a matter in which the Township
had an interest; and
(2)
The official was acting in the discharge of a duty imposed or authorized
by law; and
(3)
The official was acting in good faith; and
(4)
The official is a named defendant in a matter pending before a court
of competent jurisdiction.
(5)
The criminal proceeding is dismissed or results in a final disposition
in favor of the official.
A.
An elected municipal official who seeks reimbursement from the Township
for the costs of defending any civil or criminal proceedings shall
deliver the complaint or indictment to the Municipal Clerk within
10 days of the time he/she is served with a complaint or indictment.
Upon receipt by the Township Clerk of a written request from the employee
for legal representation, which shall include a copy of the complaint
or indictment and all reports, records, or documents to establish
the subject incident was within the scope of employment as outlined
above, the Township Clerk shall forward the same to the Township Attorney
and all applicable insurance carriers for review.
(2)
In criminal matters, the elected municipal official will be entitled to reimbursement for his/her legal defense pursuant to § 17-2B(1) through (5), and upon the successful termination of the criminal proceedings. The elected municipal official who seeks reimbursement should retain his/her personal attorney with the knowledge that he/she may or may not be subsequently reimbursed by the Township, and that if the official is reimbursed it will be in an amount within the limits set out in § 17-4, even if the attorneys fees to be paid by the elected official is greater than that amount. The Township under no circumstances will be liable to any private attorney at any time; rather, the Township will directly reimburse the elected municipal official in the amount set forth in § 17-4.
B.
In all civil or criminal proceedings, an elected municipal official
will be barred from any reimbursement by the Township if he/she does
not obtain a written retainer agreement in which his/her attorney
certifies to keep accurate and complete records of the hours which
the attorney spends on the legal proceedings (to include the date
and nature of services performed with regard to all times) from the
outset of the case and to submit an affidavit of service at the conclusion
of the proceedings setting out that detailed time information.
C.
The elected municipal official, within five days after retaining
an attorney, shall forward a signed copy of the retainer agreement
to the Municipal Clerk. An elected municipal official who wishes to
seek reimbursement of his/her legal expenses in a civil or criminal
proceeding shall notify the Municipal Clerk within 20 days of the
termination of that proceeding. The official shall then submit the
attorney's affidavit of service signed by his/her attorney.
If the elected municipal official is entitled to reimbursement
as set forth in this chapter, the attorney fees shall be reimbursed
at a reasonable rate, said rate not to exceed the hourly litigation
rate of the Township Attorney. With respect to civil litigation, the
Township in its sole discretion can satisfy its defense obligations
to a municipal official by assigning the Township Attorney, special
counsel and/or insurance defense counsel to represent the municipal
official in any eligible civil litigation. The refusal of a municipal
official to accept counsel designated by the Township shall preclude
further reimbursement under this chapter.
A.
The Township Attorney in civil proceedings shall be directly involved
with the elected municipal official's retained attorney concerning
any recommendation for settlement of a civil lawsuit. The Township
Attorney shall then present any recommendation of settlement, which
must be in the best interest of the Township, to the Township Council
for their approval.
B.
Where a possible conflict exists between the Township and the elected
municipal official acting within the scope of his/her official Township
duties and where both are named as parties in the same civil lawsuit,
the Township Attorney may decline to represent that person.
C.
In circumstances involving litigation or other legal proceedings
between two elected municipal officials qualifying for the privileges
granted herein, the Township Attorney will not be required to represent
or otherwise participate on behalf of either party.
These provisions shall have no application to any action, suit,
or proceeding brought by the Township against any municipal official.
The Township's obligation to provide for the defense and/or
indemnification of any municipal official as set forth in this chapter
shall, unless mandated by statute, be subject to the availability
of sufficient funds, which said determination and the appropriation
of which shall be undertaken by appropriate ordinance or resolution
in the sole discretion of the Township Council.
