[HISTORY: Adopted by the Council of the Borough of Milford 11-2-1992 by Ord. No.
568-92. Amendments noted where applicable.]
GENERAL REFERENCES
Administration of government — See Ch. 3.
Personnel policies — See Ch. 28.
A.
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.
B.
Any
term not otherwise defined herein shall be given its ordinary denotative
meaning.
C.
The
term "shall" shall implicate a mandatory obligation, and the term
"may" shall implicate a discretionary power. The masculine shall include
the feminine.
D.
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.
E.
ATTORNEY
BOROUGH
CLAIM
CLERK
COUNCIL
INDEMNIFY
PUBLIC DUTY OR RESPONSIBILITY
PUBLIC EMPLOYEE
PUBLIC OFFICER
PUBLIC OFFICIAL
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.
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.
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."
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.
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:
A.
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.
B.
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.
C.
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.
D.
N.J.S.A.
59:10-4 specifically empowers the Borough to provide such indemnification.
E.
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.
A.
The
Borough shall not indemnify a public officer, public official or public
employee where:
(1)
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.
(2)
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.
(3)
The claim includes an award of punitive or exemplary damages.
(5)
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.
B.
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.
C.
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.
A.
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.
B.
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.
C.
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.
D.
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.
E.
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.
F.
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.[1]
A.
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.
C.
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.
