[Added 7-7-2004 by Ord. No. 14-04 (§ 5-50 of the 1990 Code)]
The Harding Township Committee hereby finds that it is appropriate to provide for the defense and indemnification of Township officials, employees and appointees consistent with the provisions of N.J.S.A. 59:10-1 et seq., which empowers local public entities to provide for such defense and indemnification.
As used in this article, the following terms shall have the meaning indicated:
TOWNSHIP OFFICIAL, EMPLOYEE OR APPOINTEE
Each person presently or formerly holding any Township office, position or employment, elective or appointive, full-time or part-time, whether or not compensated by fixed salary or hourly rate, and including members of the various boards, commissions or agencies of the Township. 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 include any entity which is not a natural person; any person while providing goods or services of any kind under any contract with the Township except an employment contract; any person while providing legal, engineering, professional or extraordinary unspecifiable services for compensation, unless said person is a full-time employee of the Township; and any person who as a condition of his or her appointment or contract is required to indemnify and defend the Township and/or secure insurance.
Except as otherwise provided in this article, the Township of Harding shall, upon the request of any present or former official, employee or appointee of the Township, provide, out of public funds, 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 indemnification of such officials, employees and appointees shall be for compensatory damages or any settlement approved by the Township Committee. The defense and indemnification shall extend to a cross-action, counterclaim or cross-complaint against a Township official, employee or appointee. The Township shall provide for defense of and indemnify any present or former official, employee or appointee of the Township who becomes a defendant in a civil action if the person or persons involved acted or failed to act in a matter in which the Township has or had an interest; acted or failed to act in the discharge of a duty imposed or authorized by law; and acted or failed to take action in good faith. The obligation of the Township to defend and indemnify its officials, employees or appointees for acts or omissions arising out of or in the course of the performance of their duties shall be limited to those circumstances under which the Township itself would be liable for the acts of its employees under the doctrine of respondeat superior.
If any criminal or disciplinary action is instituted against a Township official, employee or appointee based upon the act or omission of that person arising out of and directly related to the lawful exercise of his or her official duties or under color of his or her authority, and that action is dismissed or results in a final disposition in favor of that officer or employee, the Township shall reimburse that person for the costs of defending the action, including attorneys' fees and costs of trial and appeals which are determined by the Township Committee to be reasonable.
In any other action or proceeding, the Township may provide for the defense of a present or former official, employee or appointee if the Township Committee concludes that such representation is in the best interest of the Township and that the person to be defended acted or failed to act in accord with the standards set forth in this article.
Indemnification or the defense of any action shall not be provided or shall be disclaimed if the Township Committee determines that any of the following conditions shall exist or occur:
A. 
The act or omission was not within the scope of the official's or employee's authority, duty to or employment by the Township, as authorized or imposed by law.
B. 
The act or failure to act was a crime or was the result of an intentional wrong or actual fraud, actual malice or willful misconduct of the person requesting defense and indemnification.
C. 
The defense of the action or proceeding would create a conflict of interest between the Township and the official, employee or appointee.
D. 
There exist policies of insurance, either obtained by the Township or by another, by virtue of which the Township official, employee or appointee is entitled to a defense of the action from the insurer. However, the Township shall provide a defense and indemnification as provided by this article to the extent the official, employee or appointee is not covered by insurance.
E. 
The Township official, employee or appointee has failed to deliver to the Township Administrator within 10 days of the time he or she is served with the summons, complaint, process, notice, demand or pleading, the original or copy of such document; provided, however, that this time period may be extended by the Township Committee for good cause shown.
F. 
The official, employee or appointee fails to request the defense of any action.
G. 
The official, employee or appointee fails to cooperate fully with the Township in the defense of the matter.
H. 
If the action or proceeding is brought by or on behalf of the Township.
If a Township official, employee or appointee is found guilty of a crime, actual fraud, actual malice, willful misconduct or an intentional wrong, he or she shall be obligated to reimburse the Township for the cost of the legal defense (if any is provided by the Township).
A. 
Official's, employee's or appointee's duty to notify, request defense by and cooperate with the Township. A Township official, employee or appointee shall not be entitled to a defense or indemnification under this article unless within 10 calendar days of the time he or she is served with any summons, complaint, process, notice, demand or pleading, he or she delivers the original or a copy thereof to the Township Administrator, requests that the Township provide a defense and fully cooperates with the Township during the defense; provided, however, that this time period may be extended by the Township Committee for good cause shown.
B. 
Township to control representation. Whenever the Township provides for the defense of a Township official, employee or appointee pursuant to this article, and as a condition of such defense, the Township may, through its Attorney, assume exclusive control over the representation of such Township official, employee or appointee, and such persons shall cooperate fully with the Township.
C. 
Methods of providing defense. The Township may provide for a defense pursuant to this article by authorizing an attorney representing the Township to act on behalf of the person being defended or by employing other counsel for this purpose or by asserting the Township's right under any appropriate insurance policy which requires the insurer to provide the defense.
D. 
Selection of attorney and approval of fees. If the Township Committee decides not to select counsel to represent the official, employee or appointee, the official, employee or appointee may propose his or her own counsel, subject to the approval of the Township Committee, who shall enter an agreement with the Township, setting forth the rate of compensation and the estimated total cost of the defense.
[Amended 2-21-2012 by Ord. No. 02-12]
The Township shall not pay for or indemnify any person against the payment of punitive or exemplary damages, penalties or fines resulting from the commission of a crime, actual fraud, actual malice, willful misconduct or an intentional wrong, but the Township shall provide for the legal defense of such claims in accord with the standards set forth in this article. Nevertheless, the Township Committee shall indemnify an official, employee or appointee for punitive or exemplary damages, provided the Township Committee determines that the acts complained of did not constitute a crime, actual fraud, actual malice, willful misconduct, or an intentional wrong. Such indemnification shall be accomplished by Township Committee adoption of a resolution containing factual findings and conclusions and authorizing indemnification for the damages arising out of the claim or litigation at issue.
The events giving rise to a cause of action or claim for which a defense or indemnification is sought must have occurred after January 1, 2004, and any claim based on an event prior to that date shall not be covered by this article, unless the Township Committee determines for good cause shown that indemnification should be provided for an event prior to that date.