[Adopted 10-4-2004 by Ord. No. 25-04[1]]
[1]
Editor's Note: Editor’s Note: This ordinance also provided for the repeal of former Ch. 42, Art. IV, Defense and Indemnification, adopted 12-4-1995 by Ord. No. 1211 (Ch. 35 of the 1982 Code).
Pursuant to N.J.S.A. 59:10-4, as same may be amended from time to time, the Borough of Leonia does hereby authorize indemnification of any person holding public office, position or employment, elective or appointive, hereinafter referred to as the "employee."
The Borough of Leonia shall, upon application, provide for the defense of any action, suit or proceeding, commenced or threatened, whether civil, criminal, administrative or investigative, including a cross-action counterclaim or cross complaint, against any employee on account of any act or omission within the scope of his employment and shall defray all costs of defending such action, including reasonable counsel fees and expenses, together with costs of appeal, if any, provided that the act or the failure to act does not arise out of actual fraud, willful misconduct or actual malice nor for violation of municipal or state ethics violations. At the Borough's option, the Borough may, in lieu of providing for the defense of an action, suit or proceeding, reimburse the employee for the employee's costs of defending an action, suit or proceeding.
The Borough shall indemnify and save harmless each employee from financial loss resulting from any action described in this article, including claims, losses, expenses, judgments, fines, attorney fees, court costs and expert or technical witness fees and any amount paid in settlement thereof, and actually and reasonably incurred in connection therewith, to the extent permitted by law. Expenses thus incurred may be paid in advance of final disposition of the action. Nothing herein shall authorize the Borough to pay for punitive or exemplary damages or damages resulting from the commission of a crime.
The Borough may employ legal counsel and expert or technical personnel to provide a defense, pursuant to this article, and may purchase appropriate insurance as protection against any liability arising under this article.
An employee shall not be entitled to indemnification or the cost of defense under this article unless, within 10 days of the time such employee is served with any summons, order to show cause, complaint, process, notice, demand or pleading, he delivers the same or a copy thereof to the Borough Clerk, whereupon it shall be the duty of the Borough Clerk to forthwith notify the Mayor and Borough Attorney thereof, provided that such time period may be extended for cause by the affirmative vote of a majority of the full membership of the governing body.
An employee requesting defense of any action or claiming indemnification under this article shall cooperate fully and in good faith with the Borough and with any attorneys, adjusters, investigators or expert or technical settlement or other disposition thereof. If such employee shall neglect, fail or refuse to cooperate as aforesaid, rights created under this article for the benefit of such employee to be forfeited and terminated by the affirmative vote of a majority of the full membership of the governing body.
In the event that there exist any pending criminal actions prior to the enactment of this article for which the Borough would have provided indemnification, the Borough shall only provide indemnification and reimbursement upon conclusion of the matter provided that the charges are dismissed or terminated by the prosecution or upon a finding of acquittal by a court of competent jurisdiction. A successful application to the pretrial Intervention Program shall not constitute grounds for indemnification and reimbursement. In the event of indemnification by the Borough for a criminal action which results in conviction or entry into the pretrial Intervention Program, the Borough shall be entitled to reimbursement from the employee. Any costs of previous criminal investigations not resulting in indictment which would have been reimbursed by the Borough if this article had been in effect at the time of an investigation shall now be reimbursed by the Borough upon application.
All ordinances or parts of ordinances inconsistent or in conflict with this article are hereby repealed as to said inconsistencies and conflicts.
If any section, part of any section, or clause or phrase of this article is for any reason held to be invalid or unconstitutional, such decision shall not affect the remaining provisions of this article. The governing body of the Borough of Leonia declares that it would have passed the ordinance and each section and subsection thereof, irrespective of the fact that any one or more of the subsections, sentences, clauses or phrases may be declared unconstitutional or invalid.
This article shall take effect immediately upon passage and publication according to law.