[HISTORY: Adopted by the Council of the Borough of Milford 11-2-1992 by Ord. No. 568-92. Amendments noted where applicable.]
Except as may otherwise be set forth herein, all definitions contained in N.J.S.A. 59:1-3 are incorporated herein to the extent applicable and shall govern the provisions of this chapter.
Any term not otherwise defined herein shall be given its ordinary denotative meaning.
The term "shall" shall implicate a mandatory obligation, and the term "may" shall implicate a discretionary power. The masculine shall include the feminine.
The terms "public officer," "public official" and "public employee" include any former public officer, public official or public employee where a claim arises from his former tenure or employment.
Unless a contrary meaning is specifically indicated herein, the following definitions shall apply in construing and applying the provisions of this chapter:
- The Borough Attorney or his designee.
- The Borough of Milford in the County of Hunterdon and State of New Jersey.
- A demand made against a public official, officer or employee arising from the performance by that official, officer or employee of his public duties or responsibilities, whether or not the same is subsequently deemed valid, whether civil or criminal.
- The Borough Clerk of the Borough or his designee.
- The Common Council of the Borough.
- To provide reimbursement for the expenses of or to provide legal representation for a public official, officer or employee, or to pay or provide payment of a claim made against such public official, officer or employee.
- PUBLIC DUTY OR RESPONSIBILITY
- Any task assigned to a public official, officer or employee by the Borough which fulfills a public need or which is otherwise within the scope of such official's, officer's or employee's duties or employment.
- PUBLIC EMPLOYEE
- An employee of the Borough who receives a salary or hourly wage, is engaged in performing public duties or responsibilities and is not otherwise defined as a "public officer" or "public official."
- PUBLIC OFFICER
- Any elected or appointed official exercising policy, judicial or quasi-judicial power, any statutory officer, whether full- or part-time, or any member of any advisory body created pursuant to the Borough Code, including but not limited to the Mayor, members of the Common Council, Milford Borough Joint Land Use Board, Borough Clerk, Deputy Clerk, Tax Collector, Deputy Tax Collector, Tax Assessor, Deputy Tax Assessor and Municipal Judge.
- PUBLIC OFFICIAL
- Any part-time appointed professional employed by the Borough to perform public duties and responsibilities of an administrative or advisory nature pursuant to statute, including but not limited to the Chief Financial Officer of the Borough, Borough Treasurer, Borough Auditor, Borough Attorney, Borough Engineer, Borough planning consultant or similar advisors appointed by or assigned to any advisory board or agency.
The Common Council finds and declares that:
Public officials, officers and employees who are required, as a result of their position, duties or employment, to protect the interests of the Borough must be free to do so without fear of financial ruin arising from claims brought against them for the performance of their public duties and responsibilities.
The Borough has a moral obligation to stand behind and support its public officials, officers and employees when they are acting within the scope of their offices or employment in performing their public duties and responsibilities.
It is the public policy of the State of New Jersey to encourage municipalities to indemnify their public officials, officers and employees in the same manner as the state itself indemnifies its officers, agents and employees.
N.J.S.A. 59:10-4 specifically empowers the Borough to provide such indemnification.
The Borough of Milford is desirous of providing indemnification to its public officers, officials and employees, subject to the requirements of law and the provisions of this chapter.
The Borough shall indemnify any public officer, public official or public employee from any claim brought against him arising from the discharge by said public officer, public official or public employee of his public duties or responsibilities, except to the extent that indemnification is excluded pursuant to § 7-4 herein.
The Borough shall not indemnify a public officer, public official or public employee where:
After investigation, it can be determined that the claim did not arise as a result of the discharge of a public duty or responsibility by the public officer, public official or public employee.
The claim arose from an act or omission which was clearly beyond the scope of the public officer's, public official's or public employee's official duties or employment or was clearly ultra vires.
The claim includes an award of punitive or exemplary damages.
The public officer, public official or public employee fails or refuses to comply with the procedures set forth herein for the processing of such claims.
Notwithstanding the foregoing, the Borough shall indemnify any public officer, public official or public employee to the extent that it shall provide the means for such public officer, public official or public employee to defend himself against a claim, but such indemnification shall not extend to the payment of such claims, provided that the public officer, public official or public employee complies with the procedures set forth herein for the processing of such claims.
The Borough may provide for the defense of any public officer, public official or public employee at any time when it is determined by the Council to be in the best interest of the Borough, anything to the contrary herein notwithstanding.
Any public officer, public official or public employee shall, within 10 calendar days of receipt of notice by him of the claim, whether such notice is from a notice of tort claim served pursuant to N.J.S.A. 59:8-1 et seq. or by service upon him of any summons, complaint, process, notice, demand or other pleading, deliver the original or a copy thereof to the Clerk.
Upon receipt of the same, the Clerk shall forthwith transmit a copy of the same to the Attorney, who shall review the same and advise the Clerk, the Council and the public officer, public official or public employee if he (the Attorney) will provide a defense of such claim or if the public officer, public official or public employee should obtain separate representation.
If the Attorney determines to defend the claim himself, the public officer, public official or public employee implicated shall cooperate fully with the Attorney, and the Attorney shall have complete control over the defense of the claim, in consultation with the public officer, public official or public employee and the Council. The Attorney may decline to provide a defense if he concludes that to do so would create a conflict of interest between the Borough and the individual. The Attorney may designate an attorney at law to defend the claim in his stead, with the approval of the Council.
If the Attorney or his designee determines not to defend the claim, the Borough shall provide for the payment of defense counsel for the public officer, public official or public employee.
The defense herein shall include appellate costs only if the Attorney shall determine, in consultation with the Council, that the best interests of the Borough will be served by such appeal. In making this determination, the Attorney and Council shall consider, inter alia, the following factors: the size of the claim, the factual and legal basis therefor as found by the court, whether or not it was determined that the claim is excluded under § 7-4 hereof, the cost of appeal, the likelihood of success and other relevant policy considerations. An appeal by an unsuccessful claimant shall be defended unless the Attorney and Council determine that the cost of an appeal substantially outweighs all other policy considerations.
In the event that a claim is not presented promptly or in the event that a public officer, public official or public employee fails or refuses to cooperate with the Attorney or his designee, the duty to indemnify shall forthwith cease and desist, and the public officer, public official or public employee shall be forthwith notified. Thereafter, the Borough shall not, in any way, indemnify the public officer, public official or public employee for either the cost of defense or the payment of the claim unless the Council shall, by resolution, determine that the public interest requires indemnification and that such public interest substantially outweighs the public interest inherent in strict compliance with this section.
Upon final adjudication of a claim against a public officer, public official or public employee, any claim which is found to be valid and which is not excludable pursuant to the Tort Claims Act, N.J.S.A. 59:1-1 et seq., or the provisions of § 7-4 of this chapter shall be paid by the Borough as in the case of any valid claims.
If a claim is determined to be partially payable hereunder and partially excludable, that part for which indemnification is provided shall be paid by the Borough as herein set forth, but the balance, including any part excludable hereunder, shall not be paid.
Nothing contained herein shall prevent or preclude the Borough from purchasing liability or other insurance to indemnify the Borough or its public officers, public officials and public employees or some of them from liability for claims presented. If such insurance is purchased, the provisions of this chapter shall nonetheless apply to all circumstances not within the scope of such insurance. The Clerk or Attorney may, in the event that insurance coverage is or may be available for any such claims, direct that the claim or a notice thereof be transmitted to the Borough's insurer, but such transmittal shall not operate to affect the provisions of this chapter or the requirements thereof.