Borough of Hawthorne, NJ
Passaic County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Municipal Council of the Borough of Hawthorne 5-19-1999 by Ord. No. 1724 (Ch. 12 of the 1989 Code). Amendments noted where applicable.]
GENERAL REFERENCES
Administration of government — See Ch. 2.
Other offices and bodies — See Ch. 45.
It is the intent and purpose of this chapter to provide for the indemnification and defense of actions against certain public officials and employees pursuant to N.J.S.A. 59:10-4 and as described herein.
For the purposes of this chapter, unless the context clearly indicates a different meaning, the following words and phrases shall have the meanings set forth:
INSURANCE
Coverage afforded by insurance policies of every kind, whether the premiums be paid by the Borough, the municipal official or someone on their behalf.
MUNICIPAL OFFICIAL
Any officer or official, employee, Council member, Mayor, board member or other individual appointed or hired by the Mayor or the Borough Council or the Borough Administrator, whether full- or part-time. The term shall also include any volunteer serving the Borough on the Recreation Committee as a coach or assistant on the team organized under the auspices of the Recreation Committee, member of the Volunteer Fire Department, member of the Ambulance Corps. The term shall also include any person elected by the voters to fill any official position in the Borough or any person subsequently appointed to fill such position.
[Amended 3-3-2004 by Ord. No. 1819-04]
Except as hereinafter provided, the Borough of Hawthorne, hereinafter known as "the Borough" shall, upon the request of any present or former official, employee or appointee of the Borough provide for indemnification and legal defense of any civil action brought against said person or persons arising from an act or omission falling within the scope of their public duties.
[Amended 3-3-2004 by Ord. No. 1819-04]
The terms of this chapter and the definition of official, employee and appointee are to be construed liberally in order to effectuate the purposes of this chapter except that these terms shall not mean:
A. 
Any person who is not a natural person;
B. 
Any person while providing goods or services of any kind under any contract with the Borough except an employment contract;
C. 
Any person while providing legal or engineering services for compensation unless said person is a full-time employee of the Borough; and
D. 
Any person who as a condition of his or her appointment or contract is required to indemnify and defend the Borough and/or secure insurance.
[Amended 3-3-2004 by Ord. No. 1819-04]
A. 
The Borough shall provide for defense of and indemnify any present or former official, employee or appointee of the Borough who becomes a defendant in a civil action if the person or persons involved:
(1) 
Acted or failed to act in a matter in which the Borough has or had an interest;
(2) 
Acted or failed to act in the discharge of a duty imposed or authorized by law; and
(3) 
Acted or failed to take action in good faith.
B. 
For purposes of this chapter, the duty and authority of the Borough to defend and indemnify shall extend to a cross-claim or counterclaim against said person
[Amended 3-3-2004 by Ord. No. 1819-04]
The Borough shall not indemnify any person against the payment of punitive damages, penalties or fines, but may provide for the legal defense of such claims in accord with the standards set forth herein. The Borough may refuse to provide for the defense and indemnification of any civil action referred to herein if the Mayor and Council of the Borough determines that:
A. 
The act or omission did not occur within the scope of a duty authorized or imposed by law;
B. 
The act or failure to act was the result of actual fraud, willful misconduct or actual malice of the person requesting defense and indemnification;
C. 
The defense of the action or proceeding by the Borough would create a conflict of interest between the Borough and the person or persons involved.
[Amended 3-3-2004 by Ord. No. 1819-04]
In any other action or proceeding, including criminal proceedings, the Borough may provide for the defense of a present or former official, employee or appointee, if the Mayor and Council of the Borough concludes that such representation is in the best interest of the Borough and that the person to be defended acted or failed to act in accord with the standards set forth in this chapter.
[Amended 3-3-2004 by Ord. No. 1819-04]
Whenever the Borough provides for the defense of any action set forth herein and as a condition of such defense, the Borough may assume exclusive control over the representation of such persons defended and such person shall cooperate fully with the Borough.
[Amended 3-3-2004 by Ord. No. 1819-04]
The Borough may provide for the defense pursuant to this chapter by authorizing its Attorney to act in behalf of the person being defended or by employing other counsel for this purpose or by asserting the right of the Borough under any appropriate insurance policy that requires the insurer to provide defense.
This chapter shall take effect 20 days after final adoption and publication as provided by law. The obligations as described herein requiring the municipality to provide a defense and indemnify certain public officials shall be retroactive to the extent that any pending claims, complaints, pleadings against public officials as defined herein shall covered under this chapter, and the Borough shall immediately assume the defense and provide indemnification.