[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.]
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:
Coverage afforded by insurance policies of every kind, whether
the premiums be paid by the Borough, the municipal official or someone
on their behalf.
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:
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.
