[HISTORY: Adopted by the Borough Council of the Borough of Irwin as indicated in article histories. Amendments noted where applicable.]
[Adopted 12-8-1980 by Ord. No. 694 (Ch. 1, Part 2, of the 1993 Code)]
[Amended 7-7-1993 by Ord. No. 791]
Subject to the provisions set forth in this article, the Borough shall indemnify any councilperson, mayor, officer, employee or agent of the Borough, elected or appointed, who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, equitable, administrative or investigative (other than an action by or in the right of the Borough), by reason of the fact that he is or was a councilperson, mayor, officer, employee or agent of the Borough, against expenses (including attorneys' fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding), if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the Borough and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent shall not of itself create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in, or not opposed to, the best interests of the Borough and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his conduct was unlawful.
The Borough shall indemnify any councilperson, mayor, officer, employee or agent of the Borough who was or is a party or is threatened to be made a party of any threatened, pending or completed action or suit by or in the right of the Borough to procure a judgment in its favor by reason of the fact that he is or was a councilperson, mayor, officer, employee or agent of the Borough, against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit, if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the Borough; provided, however, that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the Borough and only to the extent that the Court of Common Pleas of Westmoreland County shall determine upon application that, despite the adjudication of liability, but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Common Pleas of Westmoreland County or such other court shall deem proper.
To the extent that a councilperson, mayor, officer, employee or agent of the Borough has been successful on the merits or otherwise in the defense of any action, suit or proceeding referred to in §§ 24-1 and 24-2 of this article, or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith.
Any indemnifications under §§ 24-1 and 24-2 of this article (unless ordered by a court) shall be made by the Borough only as authorized in the specific case upon a determination that indemnification of the councilperson, mayor, officer, employee or agent is proper in the circumstances because he has met the applicable standards of conduct set forth in such section of this article. Such determination shall be made:
A. 
By the Council by a majority vote of a quorum consisting of the councilpersons who were not parties to such action or suit proceeding.
B. 
If such quorum is not obtainable or, even if obtainable, a majority vote of a quorum of disinterested councilpersons so directs, by independent legal counsel in a written opinion.
No expenses incurred in defending a civil, equitable or criminal action, suit or proceeding shall be paid by the Borough in advance of the final disposition of such action, suit or proceeding as authorized in the manner provided in § 24-4 of this article upon receipt of an undertaking by or on behalf of the councilperson, mayor, officer, employee or agent to repay such amount, unless it shall ultimately be determined that he is entitled to be indemnified by the Borough as authorized in this article.
The indemnification provided by this article shall not be deemed exclusive of any other rights to which those seeking indemnification may be entitled under any laws of the Commonwealth of Pennsylvania or otherwise, both as to actions in his official capacity and as to actions in another capacity while holding such office, and shall continue as to a person who has ceased to be a councilperson, mayor, officer, employee or agent, and shall inure to the benefit of the heirs, executors and administrators of such a person.
The appropriate officers of the Borough are hereby authorized and directed to purchase insurance (to the extent that such insurance is available and the premium thereon reasonable) on councilpersons, mayors, officers, employees and agents as described in this article, which insurance shall inure against liability arising from errors and omissions in the performance of their duties in the course of their employment; provided, however, that the liability of elected or appointed officials or officers for surcharge in accordance with the law shall not be affected hereby.
Nothing contained in this article shall be construed to affect, alter or change the liability of elected or appointed officials or officers of the Borough for surcharge in accordance with the law.