Township of Evesham, NJ Article XXII Indemnification of Township Employees, Appointees and Officials

[Added 8-1-1978 by Ord. No. 25-8-78]

§ 3-90 Authorization.

Pursuant to statutory authority, N.J.S.A. 59:10-4, the Township of Evesham does hereby authorize the indemnification of its present and former employees, appointees and officials in accordance with the indemnification provisions applicable by statute to all state employees.

§ 3-91 Defense of present and former Township employees, appointees and officials.

[Added 2-21-1989 by Ord. No. 10-2-89]

A. Coverage. A present or former employee, appointee or official who becomes a defendant in a civil action shall be entitled to be provided by the Township with the costs of defense of said action, except as otherwise provided herein.

B. Notification. Within five working days of the time when the defendant is served with any summons, complaint, process, notice, demand or pleading, the defendant must deliver the aforesaid documents to the Township Clerk as a condition of receiving legal defense as provided herein.

C. Agreement with counsel. As a condition precedent of receiving legal defense as provided herein, the counsel chosen by the defendant shall enter into an agreement with the Township Council at the earliest possible time and in the manner provided by law for the award of contracts regarding the provision of professional services. The agreement shall set forth both the rate of compensation and the anticipated total cost of defense acceptable to the Township Council. The agreement shall expressly declare that the Township's obligation to pay counsel shall be conditioned upon the complete satisfaction of the terms and requirements of this § 3-91 and that the Township may disclaim coverage under the terms of § 3-91E. The agreement shall also state that payment shall not be due until 45 days following the termination of the matter and the submission of counsel's itemized billing.

D. Proceedings beyond trial court level. It shall be within the sole discretion of the Township Council to decide whether to provide counsel costs for proceedings beyond the trial court level.

E. Disclaimer of coverage. The Township Council shall disclaim liability for coverage of defense costs if any of the following conditions shall occur:

(1) The defendant is covered by insurance for the cost of defense.

(2) The Township is a party complaining against the defendant.

(3) Any of the acts or omissions complained of was the product of actual fraud, actual malice or willful misconduct.

(4) Any of the acts or omissions complained of was not within the scope of the defendant's duties, powers or responsibilities.

F. Determination of disclaimer of coverage.

(1) The Township Council shall determine, not later than 30 days following the termination of the case and submission by defendant's counsel to the Township Clerk of an itemized billing, together with a copy of all documents, pleadings, exhibits, transcripts and other papers filed in the case, whether it will disclaim liability for coverage of defense costs.

(2) The Township Council shall consider in its determination the pleadings, evidence and arguments brought out in the case, the verdict, if any, and any additional pertinent considerations. The Township may not disclaim coverage under this chapter if there shall have been a specific determination by the trier of fact that the defendant's actions or omissions complained of were within the defendant's scope of employment, duties and responsibilities and, further, that the defendant's actions or omissions complained of did not involve actual fraud, actual malice or willful misconduct.

(3) The Township Council's determination shall be subject to judicial review, and, where provision of defense costs has been wrongfully withheld by the Township Council, the defendant shall be reimbursed for all defense costs and for all costs incurred in prosecuting against the Township the action for reimbursement.

G. Choice of counsel. The defendant shall choose his own counsel pursuant to Subsection C. However, the defendant may choose to be represented by the Township Attorney unless the Township Attorney shall determine at any time in the proceedings that the defendant shall be represented by other counsel.