[HISTORY: Adopted by the Township Committee
of the Township of Mansfield as indicated in article histories. Amendments
noted where applicable.]
GENERAL REFERENCES
Code of Ethics — See Ch. 17B.
[Adopted 4-23-1992 by Ord. No. 1992-6[1]]
[1]
Editor's Note: This ordinance also repealed
former Ch. 25A, Indemnification of Employees, adopted 2-5-1979 by
Ord. No. 1979-2.
The Township Committee hereby finds that it
is appropriate to provide for the indemnification of Township employees
and officials in accordance with the provisions of N.J.S.A. 59:10-4
(New Jersey Tort Claims Act), which empowers local public entities
to provide for such indemnification.
As used in this article, the following terms
shall have the meanings indicated:
Includes each person presently holding any office, position
or employment, elective or appointive, whether or not such person
holds a professional license or certificate and irrespective of the
number of hours worked per week or is being paid a fixed salary or
hourly rate for the performance of his/her duties, but shall not include
any person furnishing professional or extraordinary unspecifiable
services under separate appointment, retainer, agreement or contract,
and shall also include persons formerly holding office or employment;
provided, however, that the events giving rise to a cause of action
or claim for which indemnification is sought must have occurred after
January 1, 1989, and any claim based on an event prior to that date
shall not be covered by this article.
A.
Pursuant to the authority granted by provisions of
the New Jersey Tort Claims Act, N.J.S.A. 59:10-4, the Township of
Mansfield, Burlington County, does hereby authorize and provide to
its employees and officials indemnification in accordance with the
indemnification provisions applicable to all state employees under
the New Jersey Tort Claims Act.
B.
The Township does also hereby authorize indemnification
of any person formerly or presently holding any office, position or
employment, elective or appointive, hereafter referred to as an "employee"
in accordance with the provisions herein.
A.
Except as otherwise provided herein, the Township
shall indemnify and save harmless any employee from financial loss
resulting from any civil action, suit or proceeding, including a cross-action,
counterclaim or cross-complaint, against such employee on account
of any act or omission done in the scope of his/her employment; provided,
however, that the act or failure to act does not arise out of actual
fraud, willful misconduct or actual malice.
B.
The Township shall defray all costs of defending legal
action against said employee, including attorneys' fees, court costs
and expert or technical witness fees and any amount paid in settlement
thereof and actually and reasonably incurred in connection therewith,
to the extent permitted by general law. Expenses thus incurred may
be paid in advance of final disposition of the action.
C.
Nothing herein shall authorize the Township to pay
for damages resulting from the commission of a crime; however, the
Township shall indemnify and save harmless each employee from financial
loss resulting from any action described above, including punitive
or exemplary damages, if, in the opinion of the governing body, 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.
An employee shall not be entitled to indemnification
or the cost of defense under this article unless, within five days
of the time such employee is served with any summons, order to show
cause, complaint, process, notice, demand or pleading, he/she delivers
the same or a copy thereof to the Municipal Clerk, who shall then
forthwith notify the Mayor and Township Solicitor of the pending action;
provided, however, that this time period may be extended for good
cause by the affirmative vote of a majority of the full membership
of the governing body.
The employee shall have the right to choose
his/her own counsel pursuant to the provisions of this article.
A.
As a condition precedent to the Township's provision
of indemnification under this article, the counsel chosen by the employee
shall enter into an agreement with the governing body at the earliest
possible time and in the manner provided by law for the award of contracts
regarding the provision of professional services.
B.
The agreement between counsel and the municipality shall set forth both the rate of compensation and the anticipated total cost of defense, both of which must be acceptable to the governing body, and said agreement shall expressly provide that the Township's obligation to pay counsel's fee shall be conditioned upon the complete satisfaction of the terms and requirements of this article and the Township may disclaim coverage under the terms of § 25A-9 herein.
C.
The agreement shall also state that payment shall
not be due until 45 days following the termination of the matter in
the submission of counsel's itemized bill.
It shall be within the sole discretion of the
governing body to decide whether to pay for the costs of counsel beyond
the trial court level.
A.
The governing body shall disclaim liability for coverage
of defense costs if any of the following conditions shall occur:
(1)
The employee is covered by insurance for the cost
of his/her defense;
(2)
The Township is a party complaining against the employee;
(3)
Any of the acts or omissions complained of was the
product of actual fraud, actual malice or willful misconduct; or
(4)
Any of the acts or omissions complained of was not
within the scope of the employee's duties, powers or responsibilities.
B.
The governing body shall determine not later than
30 days following the termination of the case and submission by the
employee's counsel to the Township Clerk an itemized bill (together
with copies of all documents, pleadings, exhibits, transcripts and
other papers filed in the case) whether it will disclaim liability
for coverage of defense costs.
C.
The governing body shall consider in its determination
the pleadings, evidence and arguments brought out in the case, the
verdict (if any) and any additional pertinent considerations; provided,
however, that the Township may not disclaim coverage under this chapter
if there shall have been a specific determination by the trier of
fact that the employee's actions or omissions complained of were within
the employee's scope of employment, duties and responsibilities and,
further, that the employee's actions or omissions complained of did
not involve actual fraud, actual malice or willful misconduct.
D.
The governing body's determination shall be subject
to judicial review and, where provision of defense costs has been
wrongfully withheld by the governing body, the employee shall be reimbursed
for all such costs and for all costs incurred in prosecuting the action
for reimbursement under this article.
An employee claiming indemnification under this
article shall cooperate fully and in good faith with the Township
and with any attorneys, adjusters, investigators or experts or technical
personnel engaged by the employee for the preparation and presentation
of a defense to such action or the settlement or other disposition
thereof, including any counsel or other professionals engaged independently
by the municipality, and if the employee neglects, fails or refuses
to cooperate as herein required, the governing body, after a hearing
on 10 days' written notice to the employee and for cause, may declare
all rights created under this article for the benefit of such employee
to be forfeited and terminated by the affirmative vote of a majority
of the full membership of the Township Committee.
[Adopted 4-23-2008 by Ord. No. 2008-14]
Except as hereinafter provided, the Township
of Mansfield, hereinafter known as the "Township," shall, upon the
request of any present or former official, employee or appointee of
the Township of Mansfield, provide 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.
A.
The Township shall not indemnify any person against
the payment of punitive damages, penalties, or fines, but may provide
for the legal defense of such claims in accord with the standards
set forth herein.
B.
The Township may refuse to provide for the defense
and indemnification of any civil action referred to herein if the
Mansfield Township Committee determines that:
(1)
The act or omission did not occur within the scope
of a duty authorized or imposed by law;
(2)
The act or failure to act was the result of actual
fraud, willful misconduct or actual malice of the person requesting
defense and indemnification; or
(3)
The defense of the action or proceeding by the Township
would create a conflict of interest between the Township and the person
or persons involved.
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 mean:
A.
Any person who is not a natural person;
B.
Any person while providing goods or services of any
kind under any contract with the Township except an employment contract;
C.
Any person while providing legal or engineering services
for compensation unless said person is a full-time employee of the
Township; and
D.
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.
A.
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 are alleged to have:
B.
For purposes of this article, the duty and authority
of the Township to defend and indemnify shall extend to a cross-claim
or counterclaim against said person.
In any other action or proceeding, including
criminal proceedings, the Township may provide for the defense of
a present or former official, employee or appointee if the Mansfield
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.
Whenever the Township provides for the defense
of any action set forth herein and as a condition of such defense,
the Township may assume exclusive control over the representation
of such persons defended, and such person shall cooperate fully with
the Township.
The Township may provide for the defense pursuant
to this article by authorizing its attorney to act in behalf of the
person being defended or by employing other counsel for this purpose
or by asserting the right of the Township under any appropriate insurance
policy that requires that insurer to provide defense.
