[HISTORY: Adopted by the Mayor and Council
of the Borough of Dunellen as indicated in article histories. Amendments
noted where applicable.]
[Adopted 3-1-1989]
It is the intent and purpose of this article
to provide for the defense of actions against, and the indemnification
of public employees as permitted by N.J.S.A. 59:10-4 and N.J.S.A.
40A:14-155.
As used in this article, the following terms
shall have the meanings indicated:
Includes any employee of the Borough of Dunellen, irrespective
of the number of hours worked per hour, and shall include any elected
or appointed official or any officer, employee or servant, whether
or not compensated, who is authorized to perform any act or service;
provided, however, that the term does not include an independent contractor
or any person furnishing professional or extraordinary unspecifiable
services under separate retainer, agreement or contract. The term
"public employee" shall include persons formerly holding office or
employment, provided the events giving rise to a cause of action or
claim hereunder occur after the effective date of this article.
The Borough of Dunellen shall, upon compliance
by the public employee with the applicable provisions of this article,
provide for the defense of any action, suit or proceeding, whether
civil, criminal, administrative or investigative, including a cross
action, counterclaim or cross-complaint, against any public employee
on account of any act or omission of that employee in the scope of
their employment and shall defray all costs of defending such action,
including reasonable counsel fees and expenses, together with costs
of appeal, if any, excepting actions, suits or proceedings brought
by the Borough against any public employee.
The provisions of § 15-3 shall not be applicable when a majority of the full membership of the Borough Council determines that:
The Borough shall indemnify and save harmless
each public employee from financial loss resulting from any action
described in this article, including claims, losses, expenses, judgments,
fines, attorneys' fees, court costs, 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, and
to the extent not otherwise covered by other insurance. Expenses thus
incurred may be paid in advance of final disposition of the action.
Nothing herein shall authorize the Borough to pay for punitive or
exemplary damage or damages resulting from the commission of a crime,
except that punitive or exemplary damages may be paid as authorized
by N.J.S.A. 59:10-4.
The Borough may purchase appropriate insurance
as protection against liability arising under this article. The Borough
or its insurance carrier, if applicable, shall have sole authority
to select and employ legal counsel and expert or technical personnel
to provide a defense pursuant to this article, and any other legal
counsel or such other personnel as may be selected or employed by
a public employee shall be at the sole expense of the public employee.
A public employee shall not be entitled to indemnification
or the cost of defense under this article, unless within 10 days of
the time such public employee is served with any summons, order to
show cause, complaint, process, notice, demand or pleading he delivers
the same, or a copy thereof, to the Borough Clerk, whereupon it shall
be the duty of the Municipal Clerk to forthwith notify the Mayor and
Borough Attorney thereof, provided that such time period may be extended
for cause by the affirmative vote of a majority of the full membership
of the Borough Council.
A public employee requesting defense of any
action or claiming indemnification under this article shall cooperate
fully and in good faith with the Borough, and with any attorneys,
adjusters, investigators, experts, or technical personnel engaged
for this purpose, in the preparation and presentation of the defense
to such action or the settlement or other disposition thereof. If
such employee shall neglect, fail or refuse to cooperate as aforesaid,
the Borough Council, after hearing on 10 days' written notice to the
public employee and for cause, may declare all rights created under
this article for the benefit of such public employee to be forfeited
and terminated by the affirmative vote of a majority of the full membership
of the Borough Council.
[Adopted 11-20-1995 by Ord. No. 095.12]
This article shall be known as and may be cited
as the "Uniformed Services Legal Defense Ordinance."
The Borough Council finds and determines:
A.
N.J.S.A. 40A:14-155 and 40A:14-28 require the governing
body of a municipality to provide an officer or member (hereafter
referred to as "officer") of its municipal Police Department or its
municipal Fire Department with the necessary means for a legal defense
when a police officer is a defendant in any action arising out of
and directly related to the lawful exercise of police powers in the
furtherance of his official duties and when a fire officer is a defendant
in any action or legal proceeding arising out of or incidental to
the performance of his duties;
B.
An exception to the foregoing requirement exists if
the officer is a defendant in a disciplinary proceeding instituted
against him by the municipality or in a criminal proceeding instituted
as a result of a complaint on behalf of the municipality, in which
instances if the proceedings are dismissed or finally determined in
favor of the officer, he shall be reimbursed for the expense of his
defense; and
C.
Council is desirous of providing the means for a legal
defense in those instances where required by law and of establishing
a uniform method of reimbursement for the expense of a legal defense
provided an officer in those instances.
When an officer is entitled to be provided with
the means for a legal defense in accordance with N.J.S.A. 40A:14-155
or 40A:14-28, the officer shall be reimbursed for the expense of his
legal defense but in an amount not greater than provided in the reimbursement
schedule which is attached hereto as the same may from time to time
be amended.
No reimbursement shall be provided unless authorized
pursuant to N.J.S.A. 40A:14-155 or 40A:14-28 and this article.
In order to obtain reimbursement, an officer
must establish the following criteria:
A.
The Borough Attorney has authorized in writing the
performance of services by the officer's attorney;
B.
The officer's attorney has agreed in writing to the
fees set forth in the reimbursement schedule attached hereto;
C.
The officer's attorney has submitted to the Borough
Attorney, prior to payment, an itemized bill and affidavit or certification
of services containing the services performed, the time it took to
perform each service and any expenses incurred;
D.
The Borough Attorney has recommended payment of said
itemized bill; and
E.
The Borough Council has approved payment of said itemized
bill.
This article shall not be construed as permitting
an officer the right to obtain counsel of his own choosing when representation
and the necessary means for a legal defense may be provided by the
Borough Attorney, an insurance carrier or insurance pool pursuant
to an insurance or self-insurance agreement with the Borough, or by
any other attorney who may be appointed at the discretion of the Borough
Attorney.
A.
Civil cases, including intentional acts and civil
rights violations. All out-of-court preparation time including the
following:
(1)
Preparation of initial pleadings, answers cross claims,
third-party complaints, investigation, research, correspondence, telephone,
travel, drafting or answering interrogatories, preparation of pretrial
memoranda, attendance at pretrial conferences, conferences, settlement
discussions, conferences with opposing attorneys, judge, clients,
or witnesses, attendance at calendar calls, presence in court to assist
a witness in the exercise of rights, appearance at pretrial motions
including preparation and/or review of papers, briefs, etc., appearance
at depositions, etc.: $75 per hour maximum.
(2)
Trial time: $90 per hour maximum.
B.
Indictable offenses.
(1)
Appearance before the Grand Jury (Note: Only includes
actual time spent with client at Grand Jury while client is testifying):
$75 per hour maximum.
(2)
Appearance at arraignment: $75 total.
(3)
Appearance at preliminary hearing in Municipal Court
on indictable offense: $75 total.
(4)
Appearance at pretrial motions including discovery,
suppression, double jeopardy, quash indictment, etc.: $150 maximum.
(5)
Out-of-court preparation time for investigation, research,
correspondence, telephone calls and all other out-of-court preparation:
$75 per hour maximum.
(6)
Trial time: $90 per hour maximum.
C.
Nonindictable offenses and ordinance violations.
(1)
All out-of-court preparation and all appearances,
including trial in Municipal Court: $300 total.
D.
Downgraded offenses. If any member is charged with an indictable offense which is subsequently downgraded and disposed of at the Municipal Court level, the officer's attorney shall be reimbursed in accordance with Subsection B herein for all services rendered at the Superior Court level and in accordance with Subsection C for all services rendered at the Municipal Court level.
E.
Disbursements.
(1)
Reasonably necessary disbursements actually expended
for fees, transcripts, subpoena service, depositions, telephone toll
calls, transportation and other costs will be reimbursed by the Borough.
Disbursements in excess of $100 must received prior approval of the
Borough Attorney.
(2)
Private investigators. Retention of private investigators
must receive prior approval of the Borough Attorney under all circumstances.
Certification by the attorney as to the justification for hiring of
said investigator must be provided along with written cost estimates
of expenses to be incurred.
F.
Exceptional cases. An attorney in an exceptional case
may feel the foregoing schedule will not provide reasonable compensation.
In such instances the attorney should contact the Borough Attorney
and outline the fees which he feels will be reasonable in relation
to the type of case presented. The Borough Council may grant such
relief as it deems appropriate in such cases.
G.
Miscellaneous.
(1)
Amounts indicated above as "total" are the maximum
amounts to be paid for the particular services described. In no event
shall the amount to be paid for such services exceed the amount of
$75 per hour.
(2)
Attorneys shall not be compensated for "waiting time."
(3)
Portions of an hour spent by an attorney shall be
compensated on a pro-rated basis.
(4)
Maximum time allowed for compensation is 20 hours;
all compensation for time in excess of 20 hours must receive the express
authorization from the Borough Attorney.
