[HISTORY: Adopted by the Mayor and Council of the Borough of Folsom 3-14-2002 by Ord. No. 292-2002. Amendments noted where applicable.]
Except as provided below, the Borough shall, upon a request of an employee of the Borough, provide for the defense of any action brought against such Borough employee on account of an act or omission in the scope of his or her employment or official Borough duties. For purposes of this chapter, the Borough's duty to defend shall extend to counterclaims or cross claims against an employee.
The Borough may refuse to provide for the defense of an action if it determines that:
The act or omission was not within the scope of employment; or
The act or the failure to act was because of actual fraud, willful misconduct or actual malice; or
The action is brought by the Borough itself against the employee; or
The employee acted in violation of the Municipal Ethics Law, N.J.S.A. 40A:9-22.1 et seq.
Nothing in this chapter requires the Borough to pay for punitive or exemplary damage or damages resulting from the commission of a crime. The Borough may indemnify a Borough employee for exemplary or punitive damages resulting from the employee's civil violation of state and federal law if, in the opinion of the Council, the acts committed by the employee upon which the damages are based did not constitute actual fraud, actual malice, willful misconduct or an intentional wrong.
It shall be the duty of the employee to immediately notify the Borough Clerk in writing as to any action filed or threatened against the employee.
The Borough shall have exclusive control over the representation of such person defended, and such person shall cooperate fully with the Borough; provided, however, that such person may at any time and at such person's option take control over representation by waiving all rights to indemnification and all rights to payment for costs of defense.
The Borough may provide for the defense pursuant to this chapter by authorizing the Borough Attorney to act on behalf of the person being defended, or by employing other counsel for this purpose, or by asserting the Borough's right under any appropriate insurance policy which requires the insurance to provide the defense. Except as provided below, the Borough shall not reimburse the employee for any legal costs incurred that were not authorized by the Borough in writing.
[Amended 3-18-2004 by Ord. No. 6-2004]
The Borough of Folsom shall indemnify municipal employees and officials for all claims, including defense costs, if the employee establishes that the act or omission upon which the claim and judgment was based occurred within the scope of employment by the Borough of Folsom and that the employee did not act or fail to act because of actual fraud, actual malice or wilful misconduct.
As used in this chapter, the following terms shall have the meanings indicated:
- An officer, employee or servant of the Borough, whether or not compensated or part-time, who is authorized to perform any act or service; provided, however, that the term shall not include an independent contractor.