Township of Montville, NJ Article II Indemnification of Township Officials

[Adopted by Ord. No. 1999-3 (Ch. 2.32 of the 1998 Code)]

§ 49-8 Definitions.

As used in this article, the following terms shall have the meanings indicated:

EMPLOYEE

Any officer or employee, whether or not compensated, or part-time individual member or appointed boards and committees and elected officials, who are authorized to perform any act or service; provided, however, that the term does not include an independent contractor.

PUBLIC EMPLOYEE

Any employee or former employee of the Township.

§ 49-9 Defense of actions.

The Township shall provide for the defense of any civil or criminal actions brought against a public employee for any act directly related to the lawful exercise of official authority in the furtherance of his or her official duties, and this obligation shall extend to any cross-action, counterclaims or cross-complaint against such employee.

§ 49-10 Exceptions.

The provisions of this article shall not be applicable when the Township Committee determines that:

A. The act or omission was not directly related to the lawful exercise of official authority in the furtherance of his or her official duties.

B. The act or failure to act was because of actual fraud, willful misconduct or actual malice.

C. The defense of the action or proceeding is provided for by an insurance policy or policies, whether obtained by the Township or by any other person.

D. The public employee failed to deliver to the Township Clerk, within 10 calendar days after the time he or she was served with the summons, complaint, process, notice, demand or pleading, the original or a copy of the same.

E. The public employee has failed to cooperate fully with the defense.

F. The action is a disciplinary proceeding instituted against the employee by the Township or is a criminal proceeding instituted as a result of a complaint on behalf of the Township. If, however, any such disciplinary or criminal proceeding instituted by or on behalf of the Township is dismissed or finally determined in favor of the employee, the employee shall be reimbursed for the expense of his or her defense.

§ 49-11 Methods of provided defense.

The Township may provide any defense required of it under this article through the Township Attorney or through the retention of another attorney. The cost of retention of an outside attorney shall be provided when the defense of the action or proceeding creates a conflict of interest between the Township and the public employee.

A. When the Township provides any defense required of it under this article through the Township Attorney, the Township may assume exclusive control over the representation of the public employee, and such employee shall cooperate fully with the defense.

B. The Township Committee may approve the retention of an outside attorney in accordance with the following conditions:

(1) The employee does not have the right to an attorney of his or her choice at Township expense. However, the Township Committee may approve of an attorney requested by the employee.

(2) The attorney retained by the Township shall provide a written retainer agreement and shall submit an affidavit of services rendered prior to payment.

(3) Nothing in this section shall prevent an employee from retaining an attorney of the employee's choice at his or her own expense, without reimbursement from the Township.

C. Township Attorney responsibilities; possible conflicts.

(1) When the outside attorney is retained, the Township Attorney shall be directly involved with the public employee's attorney concerning any recommendation for settlement of a civil lawsuit. The Township Attorney shall then present any recommendation of settlement, which must be in the best interest of the Township, to the Township Committee for its approval.

(2) Where a possible conflict exists between the Township and the public employee, acting within the scope of his official Township duties, and where both are named as parties in the same civil lawsuit, the Township Attorney may decline any involvement in the matter.

(3) In circumstances involving litigation or other legal proceedings between two public employees qualifying for the privileges granted herein, the Township Attorney will not be required to represent or otherwise participate on behalf of either party.

§ 49-12 Indemnification.

A. In any case where the Township is required to provide a defense or where the employee is entitled to defense reimbursement under this article, the Township shall pay or shall reimburse the public employee for:

(1) Any bona fide settlement agreements entered into by the employee, provided that the procedures set out in this article have been complied with;

(2) Any judgments entered against the employee.

B. In addition, in any case where the Township would be required to provide a defense under this article, except for the fact that such defense is provided for by insurance, the Township shall provide indemnification as aforesaid, but only to the extent not covered by insurance. Nothing in this article shall authorize the Township to pay for punitive or exemplary damages or damages resulting from the commission of a crime, except the Township 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 Township Committee, the acts committed by the employee upon which the damages are based did not constitute actual fraud, actual malice, willful misconduct or intentional wrong.