[HISTORY: Adopted by the Township Committee of the Township of Washington 2-13-1996 by Ord. No. 1996-1. Amendments noted where applicable.]
Officers and employees — See Ch. 62.
The Township Commissioners hereby find 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 chapter, the following term 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 certification 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, 1994, and any claim based on an event prior to that date shall not be covered by this chapter.
Pursuant to the authority granted by provisions of the New Jersey Tort Claims Act, N.J.S.A. 59:10-4, the Township of Washington, Burlington County, does hereby authorize and provide to its employees and officials indemnification in accordance with the indemnification provision applicable to all state employees under the New Jersey Tort Claims Act.
The Township does also hereby authorize indemnification of any persons formerly or presently holding any office, position or employment, elective or appointive, hereafter referred to as an "employee" in accordance with the provisions herein.
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.
The Township shall defray all costs of defending legal action against said employee, including attorney's fees, court costs and expert or technical witness fees and any amount paid in settlement thereof and actually and reasonable incurred in connection wherewith, to the extent permitted by general law. Expenses thus incurred may be paid in advance of final disposition of the action.
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 damage, 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 chapter unless, within seven 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 Township may provide any defense required of it under this chapter through an attorney from its own staff or by employing other counsel.
Whenever the Township provides any defense required of it under this chapter, the Township, through counsel, may assume exclusive control over the representation of the public employee, and such employee shall cooperate fully with the defense.
If the municipal official files a counteraction or counterclaim in the legal proceedings, the municipality shall not be obligated to reimburse him for attorneys' fees or court costs attributable to such counteraction.
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.
The governing body shall disclaim liability for coverage of defense costs if any of the following conditions shall occur:
The employee is covered by insurance for the cost of his/her defense;
The Township is a party complaining against the employee;
Any of the acts or omissions complained of was the product of actual fraud, actual malice or willful misconduct;
Any of the acts or omissions complained of was not within the scope of the employee's duties, powers or responsibilities;
The defense of the action or proceeding would create a conflict of interest between the Township and the employee; or
Where the action is a criminal or disciplinary action.
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, pleading, exhibits, transcripts and other papers filed in the case) whether it will disclaim liability for coverage of defense costs.
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.
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 under this chapter.
An employee claiming indemnification under this chapter 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 chapter 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.