[HISTORY: Adopted by the Mayor and Council of the Borough of Folsom 3-14-2002
by Ord. No. 292-2002. Amendments noted where applicable.]
Except as provided below, the Borough shall, upon a request of an employee
of the Borough, provide for the defense of any action brought against such
Borough employee on account of an act or omission in the scope of his or her
employment or official Borough duties. For purposes of this chapter, the Borough's
duty to defend shall extend to counterclaims or cross claims against an employee.
The Borough may refuse to provide for the defense of an action if it
determines that:
A.
The act or omission was not within the scope of employment;
or
B.
The act or the failure to act was because of actual fraud,
willful misconduct or actual malice; or
C.
The action is brought by the Borough itself against the
employee; or
D.
The employee acted in violation of the Municipal Ethics
Law, N.J.S.A. 40A:9-22.1 et seq.
Nothing in this chapter requires the Borough to pay for punitive or
exemplary damage or damages resulting from the commission of a crime. The
Borough may indemnify a Borough employee for exemplary or punitive damages
resulting from the employee's civil violation of state and federal law if,
in the opinion of the Council, the acts committed by the employee upon which
the damages are based did not constitute actual fraud, actual malice, willful
misconduct or an intentional wrong.
It shall be the duty of the employee to immediately notify the Borough
Clerk in writing as to any action filed or threatened against the employee.
The Borough shall have exclusive control over the representation of
such person defended, and such person shall cooperate fully with the Borough;
provided, however, that such person may at any time and at such person's option
take control over representation by waiving all rights to indemnification
and all rights to payment for costs of defense.
The Borough may provide for the defense pursuant to this chapter by
authorizing the Borough Attorney to act on behalf of the person being defended,
or by employing other counsel for this purpose, or by asserting the Borough's
right under any appropriate insurance policy which requires the insurance
to provide the defense. Except as provided below, the Borough shall not reimburse
the employee for any legal costs incurred that were not authorized by the
Borough in writing.
[Amended 3-18-2004 by Ord. No. 6-2004]
The Borough of Folsom shall indemnify municipal employees and officials
for all claims, including defense costs, if the employee establishes that
the act or omission upon which the claim and judgment was based occurred within
the scope of employment by the Borough of Folsom and that the employee did
not act or fail to act because of actual fraud, actual malice or wilful misconduct.
A.
EMPLOYEE
As used in this chapter, the following terms shall have the meanings
indicated:
An officer, employee or servant of the Borough, whether or not compensated
or part-time, who is authorized to perform any act or service; provided, however,
that the term shall not include an independent contractor.
