[HISTORY: Adopted by the Township Committee of the Township of Shamong
5-1-2001 by Ord. No. 2001-14. Amendments noted where applicable.]
As used in this chapter, covered persons shall include:
A.
Each such person being paid a fixed salary or hourly
rate of compensation for the performance of their duties, irrespective of
the number of hours worked per week, but shall not include any person furnishing
professional or independent contractor service for the Township.
B.
Persons now or formerly holding an elective or appointive
office or position in the Township other than a person furnishing professional
or independent contractor service for the Township.
Pursuant to N.J.S.A. 59:10-4, the Township of Shamong does hereby authorize
indemnification of any person formerly or presently holding any elective or
appointive office or position, including serving or who served on an appointive
board or agency of the Township, or employment with the Township, other than
a person furnishing professional or independent contractor service for the
Township, in accordance with the provisions herein.
Except as otherwise provided herein, the Township shall indemnify and save harmless any person covered by the provisions of § 14-2 above from financial loss resulting from any civil action, suit or proceeding, including a cross action, counterclaim or cross complaint against such person on account of any act or omission in the scope of his or her service or employment, provided 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 such action, including attorney 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 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 is required to indemnify and save harmless each such person from financial loss resulting from an action described above.
A person covered by this chapter shall not be entitled to indemnification
or the cost of defense under this chapter unless, within five days of the
time such person is served with any summons, order to show cause, complaint,
process, notice, demand or pleading, he or she delivers the same or a copy
thereof to the Township Clerk, provided that such time period may be extended
for cause by the affirmative vote of a majority of the full membership of
the Township Committee.
The Township Committee and the Municipal Excess Liability Joint Insurance
Fund shall choose counsel pursuant to this chapter and the Municipal Excess
Liability Joint Insurance Fund rules, regulations and policies.
It shall be within the sole discretion of the Township Committee and
the Municipal Excess Liability Joint Insurance Fund to decide whether to undertake
any proceedings beyond the trial court level.
A.
Disclaimer of coverage. The Township Committee and the
Municipal Excess Liability Joint Insurance Fund shall disclaim liability for
coverage of defense costs if any of the following conditions shall occur:
(1)
The person is covered by insurance for the cost of defense.
(2)
The Township is a party complaining against the person.
(3)
Any of the acts or omissions complained of was the product
of actual fraud, actual malice or willful misconduct.
(4)
Any of the acts or omissions complained of was not within
the scope of the person's duties, powers and/or responsibilities.
B.
Determination of indemnification coverage.
(1)
The Township Committee shall determine, not later than
30 days following the termination of the case and submission to it of a copy
of all documents, pleadings, exhibits, transcripts and other papers filed
in the case, whether it will provide indemnification coverage.
(2)
The Township Committee shall consider in its determination
the pleadings, evidence and arguments brought out in the case, the verdict
(if any) and any additional pertinent considerations. The Township may not
disclaim coverage under this chapter if there shall have been a specific determination
by the trier of fact that the person's actions or omissions complained of
were within the person's scope of employment, duties and/or responsibilities
and, further, that the person's actions or omissions complained of did not
involve actual fraud, actual malice or willful misconduct.
(3)
The Township Committee's determination shall be subject
to judicial review; and, where provision of indemnification has been wrongfully
withheld by the Township Committee, the person shall be reimbursed for all
costs incurred in prosecuting the action for reimbursement against the Township.
A person claiming indemnification under this chapter shall cooperate
fully and in good faith with the Township and with any insurance provider,
attorneys, adjusters, investigators or expert or technical personnel engaged
for the preparation and presentation of a defense to any suit or the settlement
or other disposition thereof. If the person neglects, fails or refuses to
cooperate as aforesaid, the Township Committee, after a hearing on 10 days'
written notice to the person and for cause, may declare all rights created
under this chapter for the benefit of such person to be forfeited and terminated
by the affirmative vote of a majority of the full membership of the Township
Committee.
