[HISTORY: Adopted by the Common Council of the City of Egg Harbor City 2-26-2004 by Ord. No. 1-2004. Amendments noted where applicable.]
The Common Council shall by ordinance establish titles for public employment by the City and salary ranges for City employees. (Said titles shall conform to the New Jersey Civil Service Act and regulations promulgated by the New Jersey State Department of Personnel).
Editor's Note: See N.J.S.A. 11A:1-1 et seq.
The Common Council shall by resolution adopt and amend from time to time personnel policies and procedures including rules concerning the hiring and termination of employees, terms and conditions of employment, and regulations required to comply with applicable federal and state employment-related law. The personnel policies and procedures adopted pursuant to said resolution(s) shall be applicable to all officials, appointees, employees, prospective employees, volunteers and independent contractors of the City.
The City Administrator shall be responsible to implement and enforce the personnel practices adopted by ordinance or resolution authorized pursuant to this section. If there is a conflict between said personnel practices and any duly adopted and lawful collective bargaining agreement, personnel services contract or federal or state law, the terms and conditions of that contract or law shall prevail. In all other cases, the practices adopted pursuant to this chapter shall prevail.
[Added 6-25-2009 by Ord. No. 10A-2009]
Definitions. As used in this section, the following terms shall have the meanings indicated:
- Any report, formal or informal, of a demand for compensation for damages for injuries allegedly caused by an employee as defined herein. The term shall include, but shall not be limited to, all demands for damages before any court or agency for bodily injury, property damage and violation of a civil or constitutional right, including false arrest, inverse condemnation and causes of action arising under 42 U.S.C. § 1981 et seq.
- Any person employed by the City of Egg Harbor, including elected officials, constitutional officers and their employees, and volunteers performing services on behalf of the City of Egg Harbor while actually performing those services. The term does not include persons or entities performing services under a nonemployment contract with the City of Egg Harbor.
- The cost of defense, which may, at the City's option, be provided by the City Attorney or pursuant to coverage under any policy of insurance or by private counsel, and all sums which the employee would be legally obligated to pay as compensatory damages or in settlement of any claim against the employee for matters arising from or related to actions taken in the course of employment with the City of Egg Harbor, whether the claim is presented during the period of the employee's employment or thereafter, and shall include the payment of salary or wages for any employee who, by reason of an indemnified claim, is absent from his or her work station for the purpose of attending legal proceedings or other business in connection therewith and the City of Egg Harbor would otherwise be responsible for payment of the employee's salary or wages. The term shall also include all sums which the employee would be legally obligated to pay in the nature of exemplary or punitive damages in the event that the Common Council of the City of Egg Harbor shall be of the opinion, upon the advice of the City Attorney, that 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, pursuant to Chapter 340 of the Laws of 1987 (N.J.S.A. 598:104, as amended). The determination of a civil court shall not preclude a finding by council that indemnification is warranted.
Circumstances warranting indemnification. Employees, as defined herein, will be indemnified, as defined herein, by the City of Egg Harbor, where it appears to the City Administrator, after preliminary investigation, that all of the following circumstances exist:
The act or acts complained of took place during a time when the employee was actually performing services of behalf of the City of Egg Harbor. whether or not during formal working hours.
It reasonably appears that the employee was acting within the scope of the City of Egg Harbor employment or duties, and in furtherance thereof, in the performance of the act or acts giving rise to the claim and the employee so avers.
The employee has notified his or her department head and the City Administrator, in writing, within seven working days of notice of the claim, enclosing a copy of the claim and all relevant documents. Former employees shall be responsible for notifying the City of Egg Harbor Administrator within seven working days and shall be required to enclose the same documentation as is required of the current employee. The City Administrator shall promptly acknowledge receipt of the claim and notify the City of Egg Harbor of the existence of the claim. The City Administrator shall advise the Common Council of the claim, and after the circumstances underlying the claim have been reviewed by Council, the City Attorney shall advise the employee and department head, where appropriate, as to whether indemnification hereunder will be provided. Upon compliance with the provisions of this section, and subject to the provisions of Subsections C and D of this section, indemnification shall be mandatory.
Circumstances not warranting indemnification. The City Administrator may determine, after preliminary investigation of the matter and taking all circumstances into account, that indemnification is not warranted if:
The employee, in performing the act complained of, was acting wrongfully with the intent to injure another;
The employee was acting for the purpose of personal gain;
The employee was acting in a manner which violated state or federal law, including, but not limited to, written policy of the City of Egg Harbor which the employee was or ought to have been aware; or
The acts committed by the employee constituted actual fraud, actual malice, willful misconduct or an intentional wrong, and the Common Council elects not to provide indemnification hereunder pursuant to Chapter 340 of the Laws of 1987 (N.J.S.A. 59:10-4, as amended) and Subsection A of this section.
Revocation of indemnification. The decision to indemnify based upon preliminary investigation is not final and binding upon the City of Egg Harbor. Should facts be revealed during the course of handling the claim, whether or not they could have been discovered at an earlier time, that show that the employee was acting in a manner which does not entitle him or her to indemnification for the reasons stated in Subsection C above, the Common Council may revoke the indemnification. Further, should the employee unjustifiably fail or refuse to cooperate in defending the claim, indemnification may be revoked.
Settlement of claims; consent of employee. By accepting indemnification from the City of Egg Harbor in accordance with this section, the employee agrees that the City of Egg Harbor may perform such investigations and enter into such negotiations on the employee's behalf as the City of Egg Harbor shall deem necessary and proper and may settle any claims, regardless of whether the City of Egg Harbor actually feels the allegations are groundless or false. In the event that the employee refuses to consent to any settlement, the City of Egg Harbor shall be liable only for that amount for which the City of Egg Harbor could have settled the claim had the employee consented.
Construal of provisions. This section shall not create, nor shall it be construed as, a contract of insurance between the City of Egg Harbor and any employee. The City of Egg Harbor shall not be considered an insurer or primary insurer for any purpose and shall not by this section be obligated to settle any claim on an employee's behalf or to tender its limits of coverage in order to avoid excess liability on the employee's part.
Complaints involving criminal or motor vehicle offenses. Where an employee has been charged with a criminal offense or an offense under the Motor Vehicle Law of the State of New Jersey, it may be that, regardless of the outcome of the charge, disciplinary action will be taken against the employee based on the underlying facts. Accordingly, representation will not be provided by the City Attorney unless there is a specific provision to the contrary in the applicable collective bargaining agreement. Employees without such a contract provision who desire counsel will be required to retain their own attorney.
Applicability. This section shall apply to all matters which have not been finally resolved at the date of enactment hereof, regardless of whether or not the acts for which damages are sought occurred before passage of this section.
To the extent that the terms of this section conflict with any indemnification or obligations to provide defense provisions of employee contracts or collective bargaining agreements to which the City is a party, the terms of said contracts or agreements shall control and supercede the provisions of this section.