[HISTORY: Adopted by the Mayor and Council
of the Borough of Newfield 8-30-1999 by Ord. No. 99-5. Amendments noted where
applicable.]
GENERAL REFERENCES
Officers and employees — See Ch. 37.
As used in this chapter, the following terms
shall have the meanings indicated:
Refers to the means by which such public employee may respond
to any suit, allegation, or cause of action.
To secure against loss or damage which may occur in the future,
or to provide compensation for or to repair loss or damage already
suffered; to insure; to save harmless.
Includes any employee of the Borough of Newfield 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 for the Borough of Newfield. The term "public employee"
shall also include persons formerly holding office or employment,
provided the events giving rise to a cause of action or claim hereunder
conform to the requirements herein established.
A.
The State of New Jersey, through the passage of the
Tort Claims Act, as amended and supplemented from time to time (N.J.S.A.
59:1-1 et seq.), has determined the circumstances under which claims
may be made against public entities and their officials, employees
and servants.
B.
Said Tort Claims Act also specifies under what circumstances
a public entity may defend and indemnify its officials, employees
and servants.
C.
The Mayor and Council for the Borough of Newfield
hereby provide, under certain circumstances, for the defense and indemnification
of its officers, employees and servants in the good faith performance
of their duties and responsibilities.
D.
Such defense and indemnification are especially appropriate
for members of appointed boards who serve the Borough of Newfield
without monetary compensation.
E.
The indemnification of municipal employees is also
expressly designed to avoid a conflict between the employer and the
employee when claims are lodged. The Supreme Court for the State of
New Jersey has noted that because the law does not require, but does
permit indemnification of local public entity employees, conflicts
of interest may arise in absence of such indemnification where an
entity and an employee are both sued for compensatory damages in,
for example, a civil rights action and both employ the same attorney
to defend. Likewise, the court pointed out such conflict could arise
because the employee is liable for punitive damages and the entity
is not. (See Petition for Review of Opinion 552, 102 NJ. 194). Accordingly,
this indemnification policy is also intended to increase the efficiency
and reduce the costs of defending the Borough of Newfield and its
employees and agents in the event of such actions.
A.
Whenever a civil action shall be brought against any
person holding an office, position or employment with the Borough
of Newfield for any action or omission arising out of or in the course
of the performance of the duties of such office, position or employment,
the Borough of Newfield shall provide payment of that portion of any
exemplary or punitive damage award not otherwise covered by a policy
of insurance. Note, however, that the Borough of Newfield does not,
by indemnifying its employees against punitive damage, indirectly
or directly waive its own immunity against such claims (See T &
M Homes, Inc. vs. Pemberton Twp., 190 NJ Super 637).
B.
Whenever a civil action shall be brought against any
person holding an office, position or employment with the Borough
of Newfield for any action or omission arising out of or in the course
of the performance of the duties of such office, position or employment,
the Borough of Newfield shall provide payment of that portion of any
costs of defense of said action not covered by a policy of insurance.
Whenever any insurance policy whose purpose is to provide the defense
and indemnification of the Borough of Newfield or its public employee
is in dispute, the Borough of Newfield will stand in the place of
the insurance carrier, subject to all rights of subrogation, to provide
for the defense and indemnification of its employees as specified
herein. Said public employee has an affirmative duty, to be eligible
for said defense and indemnification, to cooperate with the Borough
of Newfield in any and all of its efforts to resolve any disputed
insurance coverage.
C.
Whenever a civil action shall be brought seeking compensatory
damages and/or attorney fees against any person holding an office,
position or employment with the Borough of Newfield for any action
or omission arising out of or in the course of the performance of
the duties of such office, position or employment, the Borough of
Newfield shall defend and indemnify its officials, employees and servants.
By common law and this express provision to
this chapter, the Borough of Newfield's authority to indemnify is
limited to acts by public employees that are within the scope of their
employment and which are not criminal, fraudulent, malicious or instances
of willful misconduct. Additionally, the Borough of Newfield will
not provide the means for defense nor indemnify any public employee
in those instances where the Borough of Newfield has initiated the
charges or action. In the event any such public employee is charged
with criminal charges and he or she is later acquitted, any application
to recover the cost of their defense is expressly conditioned upon
the ultimate determination of administrative charges which may or
may not arise out of the same conduct or behavior. Notwithstanding
all of the above, in the event the Borough of Newfield elects to assert
such administrative charges and even if the employee should thereafter
prevail, all such claims for reimbursement for costs of defense will
be subjected to the controlling statutory and common law as opposed
to this chapter. (Note: the "..., or may not, ..." clause addresses
those instances wherein an officer is suspended on unrelated charges,
but the proceeding is tolled by a parallel criminal action.)
The Borough of Newfield shall provide 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 because 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 of Newfield against any such employee. Expressly
exempted from this chapter providing defense and indemnification to
public employees of the Borough of Newfield are any charges, allegations,
or actions of whatever nature asserted by the Borough of Newfield
against its own public employees.
