[HISTORY: Adopted by the Township Committee of the Township of Rochelle Park 3-19-2003 by Ord. No. 878-03. Amendments noted where applicable.]
It is the intent and purpose of this chapter to provide for the indemnification and defense of actions against certain public officials and employees as described herein.
For the purposes of this chapter, unless the context clearly indicates a different meaning, the following words and phrases shall be defined as set forth:
- Coverage afforded by insurance of every kind, whether the premium is paid by the Township, the municipal official or someone on their behalf.
- MUNICIPAL OFFICIAL
- Any officer or official, employee, Council member, Mayor,
Board member or other individual appointed or hired by the Township
Committee, whether full- or part-time. The terms shall also include
any volunteer serving the Township on the Recreation Commission or
as a coach or assistant on a team organized under the auspices of
the Recreation Commission, member of the Volunteer Fire Department
or member of the Ambulance Corps. The term shall also include any
person elected by the voters to fill any position in the Township
or any person subsequently appointed to fill such position.[Amended 7-21-2004 by Ord. No. 909-04; 12-16-2015 by Ord. No. 1092-15]
The Township shall provide for the defense of any action brought against a municipal official on account of any act or omission arising out of or incidental to performance of their duties, and this obligation shall extend to any complaint, counterclaim, cross claim or cross complaint against such municipal official, unless exempted by the terms of § 8-4 herein. Defense shall be provided in accordance with the terms of this chapter so long as the incident which gives rise to the action arose out of or incidental to performance of their duties regardless or whether said incident occurred prior to or subsequent to the adoption of this chapter.
The terms and provisions of this chapter shall be subject to any insurance plan or policy in effect at the time that any claim shall apply or be asserted. To the extent that any provision of this chapter shall be at variance with rules, regulations and terms of any plan of insurance maintained by the Township, said rules, regulations and provisions of the Township's plan of insurance shall supersede this chapter and shall be dispositive of any issue concerning the implementation of the purpose of this chapter.
The Township shall not be required to provide any defense when the governing body determines that:
The act or omission was not within the scope or incidental to the duties of the public official.
The act or failure to act was the result of actual fraud, actual malice, willful misconduct or an intentional wrong.
The defense of the action or proceedings is provided for by an insurance, whether obtained by the Township or by any other person or entity.
Where the action has been brought by the municipality itself against the public official or where the action is a criminal proceeding.
Where the public official has failed to provide to the Township, within 10 calendar days after the time the public official is served with any summons, complaint, process, notice, demand or pleading, the original or a copy thereof.
Where the public official has failed to cooperate fully with the defense.
With exception to § 8-6 of this chapter, which specifically provides for the appointment of attorneys on behalf of police officers, the Township may provide any defense required of it under this chapter through the attorney from its own staff or by employing other counsel. The Township shall in no event be responsible for the cost of attorney's fees incurred by anyone unless it shall agree, in writing, to the terms of the representation.
The purpose of this section is to provide any Township police officer or member of the Township's police force named as a defendant in an action or legal proceedings only if that action or legal proceedings arises out of and is directly related to the lawful exercise of police powers in the furtherance of official duties, with the policy adopted by the Police Department and Township of Rochelle Park, for the provision of necessary means for the officer's defense of such action or proceeding.
The Township of Rochelle Park will provide a member or officer of the Police Department with the necessary means for the defense of an action or legal proceedings arising out of and directly related to the lawful exercise of police powers, in furtherance of official duties.
The Township will not provide the necessary means for defense in a disciplinary proceeding instituted against the officer by the municipality or in a criminal proceeding instituted as a result of a complaint on behalf of the Township. Should such a disciplinary or criminal proceeding instituted by or on complaint of the Township be dismissed or finally determined in favor of the member or officer of the Township's Police Department, that member or officer shall be reimbursed for his attorney's reasonable fees.
The officer or member of the Township's Police Department, within five days of being notified that he or she is a defendant in an action or legal proceeding, shall advise the Chief of Police.
Upon notification, the Chief of Police will evaluate, or cause an evaluation to be made, of the complaint's circumstances. This evaluation will be for the purpose of determining whether the officer has met the following conditions:
The Chief will advise the officer involved of the following:
The evaluation purpose;
That he may, subject to the limitations stated below, request that an attorney be appointed to represent him in the action or legal proceedings by the Township;
That his attorney shall be paid a reasonable legal fee, to be approved, prior to his appointment, by the Township Committee;
That the officer does not have an absolute right to counsel of his own choosing at municipal expense and that the Township present the officer with a choice of accepting assigned counselor foregoing the benefit of having the Township provide him with the necessary means for defense of the action or legal proceedings;
In the event of a disciplinary proceeding instituted against the officer by the municipality or any criminal proceedings as a result of a complaint on behalf of the Township, the Township will not provide him with an attorney or necessary means for defense of such disciplinary proceeding or complaint; except that if the disciplinary proceeding or complaint is dismissed or finally determined in favor of the officer, that he shall be reimbursed for his reasonable defense expense;
The officer, if entitled, shall advise the Chief of the name, address and telephone number of the attorney whom the officer would request to be appointed by the Township.
Upon completion of the evaluation, the Chief of Police shall submit a memorandum to the Township Committee, with a copy to the Township Administrator and Township Clerk. The memorandum shall be maintained as a confidential document. The purpose of this memorandum shall be to report the Chief of Police's evaluation of the circumstances of the complaint and a determination as to whether the officer has satisfied the conditions prerequisite to the Township's providing the necessary means for the officer's defense. The memorandum shall also include the name and address of the attorney whose appointment the officer, if entitled, would request to defend him.
The Township Committee shall reserve the right to accept the Chief's evaluation, modify it or substitute a different means for defense of the action or legal proceedings against the affected officer. In the event that the officer's request for the appointment of his choice of an attorney is denied, he shall be notified by the Chief of Police. In that event, the officer shall be advised of the denial and of the name, address and telephone number of the attorney who will have been appointed to him by the Township Committee.
For Township ordinance and traffic-related complaints, signed against an officer, the Chief of Police, upon completion of his evaluation to determine whether the above stated conditions are satisfied, is empowered to refer the matter directly to the Township's Prosecutor, whose duty shall be to provide a defense against the charges. The Chief of Police will submit a memorandum of his evaluation and referral to the Township Committee, with a copy to the Township Administrator and the Township Clerk. The memorandum will be considered a confidential document.
Whenever the Township provides any defense required of it under this chapter, the Township, through counsel, may assume exclusive control over representation of the municipal official, and such official shall cooperate fully with the defense.
In any case where the Township is required to provide a defense under this chapter, the Township shall pay or reimburse the municipal official for the following:
In addition to Subsection A(1) of this section, in any case where the Township would be required to provide a defense under this chapter, except for the fact that such defense is provided for by insurance, either through the Township or the individual, the Township shall provide indemnification as aforesaid, but only to the extent that liability exists which is not covered by insurance and is not excepted by the terms of § 8-4 of this chapter.
In addition to the above Subsection A(1) and (2), the Township shall indemnify a public official, as defined herein, for exemplary or punitive damages, provided that, in the opinion of the governing body, the acts committed by the public official, upon which said damages are based, did not constitute actual fraud, actual malice, willful misconduct or an intentional wrong.