Except as hereinafter provided, the Borough of Hopatcong, hereinafter
known as the "Borough," shall, upon the request of any present or
former official, employee or appointee of the Borough, provide for
indemnification and legal defense of any civil action brought against
said person or persons arising from an act or omission falling within
the scope of their public duties.
The Borough shall not indemnify any person against the payment
of punitive damages, penalties, or fines but may provide for the legal
defense of such claims in accord with the standards set forth herein.
The Borough may refuse to provide for the defense and indemnification
of any civil action referred to herein if the Hopatcong Borough Municipal
Council determines that:
A. The act or omission did not occur within the scope of a duty authorized
or imposed by law;
B. The act or failure to act was the result of actual fraud, willful
misconduct or actual malice of the person requesting defense and indemnification;
or
C. The defense of the action or proceeding by the Borough would create
a conflict of interest between the Borough and the person or persons
involved.
The terms of this article and the definition of "official,"
"employee" and "appointee" are to be construed liberally in order
to effectuate the purposes of this article, except that these terms
shall not mean:
A. Any person who is not a natural person;
B. Any person while providing goods or services of any kind under any
contract with the Borough except an employment contract;
C. Any person while providing legal or engineering services for compensation
unless said person is a full-time employee of the Borough; and
D. Any person who as a condition of his or her appointment or contract
is required to indemnify and defend the Borough and/or secure insurance.
The Borough shall provide for defense of and indemnify any present
or former official, employee or appointee of the Borough who becomes
a defendant in a civil action if the person or persons involved a)
acted or failed to act in a matter in which the Borough has or had
an interest; b) acted or failed to act in the discharge of a duty
imposed or authorized by law; and c) acted or failed to take action
in good faith. For purposes of this article, the duty and authority
of the Borough to defend and indemnify shall extend to a cross-claim
or counterclaim against said person.
In any other action or proceeding, including criminal proceedings,
the Borough may provide for the defense of a present or former official,
employee or appointee, if the Hopatcong Municipal Council concludes
that such representation is in the best interest of the Borough and
that the person to be defended acted or failed to act in accord with
the standards set forth in this article.