[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.
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]
A.
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.
B.
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:
A.
The act or omission was not within the scope or incidental
to the duties of the public official.
B.
The act or failure to act was the result of actual
fraud, actual malice, willful misconduct or an intentional wrong.
C.
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.
D.
Where the action has been brought by the municipality
itself against the public official or where the action is a criminal
proceeding.
E.
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.
F.
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.
A.
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.
(1)
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.
(2)
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.
B.
Procedures.
(1)
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.
(2)
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:
(3)
The Chief will advise the officer involved of the
following:
(a)
The evaluation purpose;
(b)
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;
(c)
That his attorney shall be paid a reasonable legal
fee, to be approved, prior to his appointment, by the Township Committee;
(d)
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;
(e)
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;
(f)
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.
(4)
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.
(5)
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.
(6)
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.
A.
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:
B.
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.
C.
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.
