[HISTORY: Adopted by the City Council of
the City of East Orange 3-14-1988 by Ord. No. 9-1988; amended in its entirety 8-16-2010 by Ord. No. 11-2010. Subsequent amendments noted where applicable.]
Whenever a civil or criminal action is instituted against any
current or former appointed or elected City official, employee or
servant, whether or not compensated or hired on a part-time basis,
who is authorized to perform any act or service on behalf of the City
or any individual subject to N.J.S.A. 40A:9-134.1, 40A:14-155 and
40A:14-128 (hereinafter "employee"), for any act or omission arising
out of and in the course of and within the scope of the performance
of the duties of such office, the City shall defray the cost of defending
such action as set forth below:
A.
In
a civil matter if instituted against an employee based upon an act
or omission of that employee, the City's obligation hereunder
shall be limited to those cases in which:
(1)
The employee was acting in a matter in which the City had an interest;
(2)
The employee was acting in the discharge of a duty imposed or authorized
by law in furtherance of the employee's official duties;
(3)
The employee was acting in good faith;
(4)
The employee is a named defendant in a matter pending before a court
of competent jurisdiction or other legal proceeding; and
(5)
The civil proceeding is dismissed or results in a final disposition
without a specific finding of illegal wrongdoing or malfeasance in
office by the employee.
B.
In
a criminal matter if instituted against an employee based upon an
act or omission of that employee, the City's obligation shall
be limited to those cases in which:
(1)
The employee was acting in a matter in which the City had an interest;
(2)
The employee was acting in the discharge of a duty imposed or authorized
by law in furtherance of the employee's official duties;
(3)
The employee was acting in good faith;
(4)
The employee is a named defendant in a matter pending before a court
of competent jurisdiction or other legal proceeding; and
(5)
The criminal proceeding is dismissed or results in a final disposition
in favor of the employee.
C.
Employees
shall not be reimbursed for legal fees pursuant to this chapter in
civil or criminal actions where the City is a plaintiff, pursues disciplinary
action or otherwise initiates the action against the employee, unless
required by statute or court order.
D.
The City's defrayal of the employee's costs of defending
legal actions shall not include any post-judgment appellate actions
involving the employee unless, in the opinion of the Corporation Counsel,
it is in the best interests of the City to pursue an appeal.
E.
The City of East Orange may indemnify an employee for exemplary or
punitive damages resulting from the employee's civil violation
of state or federal law if, in the opinion of the City Council and
the Mayor, upon consultation with Corporation Counsel, the acts committed
by the employee upon which damages are based did not constitute actual
fraud, actual malice, willful misconduct or an intentional wrong.
F.
The defense and indemnification provisions of § 23-1 shall not be applicable when the Mayor and City Council, upon consultation with Corporation Counsel, determine that:
(1)
The act or omission was not within the scope of employment; or
(2)
The employee failed to deliver to the Corporation Counsel, within
10 calendar days after the time he is served with any summons, complaint,
process, notice, demand or pleading, the original or a copy of the
same unless excepted by the Corporation Counsel; or
(3)
The employee has failed to cooperate fully with the defense of the
proceeding; or
(4)
A court of competent jurisdiction has determined that the act or
omission was not within the scope of employment.
G.
Nothing contained in this chapter shall inure to the benefit of any
insurance company which has issued a policy of liability insurance
or to any person or entity who is obligated to indemnify the City
or an employee.
A.
An
employee who seeks reimbursement from the City for the costs of defending
any civil or criminal proceedings shall deliver the complaint or the
indictment to the Corporation Counsel within 10 days of the time he
is served with a complaint or indictment.
(1)
In civil matters, the employee will be entitled to reimbursement for his legal defense pursuant to § 23-1A of this chapter.
(2)
In criminal matters, the employee will be entitled to reimbursement for his legal defense pursuant to § 23-1B of this chapter upon the successful termination of the criminal proceedings.
(3)
The employee who seeks reimbursement should retain his personal attorney with the knowledge that he may or may not be subsequently reimbursed by the City and that, if the employee is reimbursed, it will be in an amount within the limits set out in § 23-3, even if the attorney's fees to be paid by the employee or costs incidental to the representation are greater than that amount. The City, under no circumstances, will be liable to any private attorney at any time; rather the City will directly reimburse the employee in the amount set forth in § 23-3.
B.
In
all civil or criminal proceedings, an employee will be barred from
any reimbursement by the City if he does not obtain a written retainer
agreement in which the 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, kept in tenths of an hour) 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
costs incidental to the defense of an employee shall be reasonable
in nature, and Corporation Counsel shall be noticed prior to incurring
the service. Whenever possible, these costs shall be set out with
specificity in the written retainer agreement.
D.
The employee, within 10 days after retaining an attorney, shall forward
a signed copy of said retainer agreement to the Corporation Counsel.
An employee who wishes to seek reimbursement of his legal expenses
in a civil or criminal proceeding shall notify the Corporation Counsel
within 20 days of the termination of that proceeding. Said employee
shall then submit the attorney's affidavit of service signed
by his attorney.
A.
The
Corporation Counsel in civil proceedings shall be directly involved
with the employee's retained attorney concerning any recommendation
for settlement of a civil lawsuit. The Corporation Counsel shall then
present any recommendation of settlement involving municipal funds
which exceeds nuisance value (defined as the bid threshold pursuant
to N.J.S.A. 40A:11-3C), which must be in the best interest of the
City, to the City Council for its approval.
B.
Where
a possible conflict exists between the City and the employee acting
within the scope of his official City duties, and where both are named
as parties in the same civil lawsuit, the Corporation Counsel shall
decline to represent that person.
C.
In
circumstances involving litigation or other legal proceedings between
two or more employees qualifying for the privileges granted herein,
the Corporation Counsel will not be required to represent or otherwise
participate on behalf of either party.
D.
Notwithstanding any provisions of this chapter to the contrary, the
Corporation Counsel in his judgment may provide for a defense pursuant
to this chapter by assigning an attorney from the Office of the Corporation
Counsel, employing outside counsel, utilizing counsel through the
City's third-party administrator or by asserting the City's
right under any appropriate insurance policy which requires the insurer
to provide a defense.
E.
Whenever the Corporation Counsel provides for the defense of an employee
or former employee pursuant to this chapter, the Corporation Counsel
may assume exclusive control over the representation of such employee
or former employee, who shall cooperate fully with the Corporation
Counsel's efforts to defend.
Any expenditure of funds in connection with the reimbursement
of counsel fees to an employee for defense of a legal proceeding or
costs incidental to the representation shall be subject to approval
by resolution of the City Council.
