[HISTORY: Adopted by the Township Council of the Township of Pohatcong as indicated in article histories. Amendments noted where applicable.]
GENERAL REFERENCES
Administration of government — See Ch. 4.
Code of Ethics — See Ch. 23.
Officers and employees — See Ch. 54.
[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Editor's Note: This ordinance also repealed former Ch. 17, Defense and Indemnification, adopted 12-13-1983, as amended.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.
(1) 
In civil matters, the elected municipal official will be entitled to reimbursement for his/her legal defense pursuant to § 17-2A(1) through (4).
(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.
A. 
A municipal official shall be entitled to indemnification for compensatory damages only for those claims arising out of or related to an act or omission falling within the scope of the official's public duties as set forth in § 17-2 above with respect to the provision of a defense.
B. 
A municipal official shall be entitled to indemnification for punitive damages in the sole discretion of the Township Council on a case-by-case basis and through the application of the criteria set forth in § 17-2 above with respect to the provision of a defense.
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.