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.
If the employee is entitled to reimbursement as set forth in §§
23-1 and
23-2 of this chapter, attorney's fees shall be reimbursed at a rate set periodically by resolution of City Council. Costs incidental to the representation may be approved on an individual basis.
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.