[HISTORY: Adopted by the Township Committee of the Township
of Washington 2-13-1996 by Ord. No. 1996-1. Amendments noted where
applicable.]
GENERAL REFERENCES
Officers and employees — See Ch. 62.
The Township Commissioners hereby find that it is appropriate
to provide for the indemnification of Township employees and officials
in accordance with the provisions of N.J.S.A. 59:10-4 (New Jersey
Tort Claims Act), which empowers local public entities to provide
for such indemnification.
As used in this chapter, the following term shall have the meanings
indicated:
Includes each person presently holding any office, position
or employment, elective or appointive, whether or not such person
holds a professional license or certification and irrespective of
the number of hours worked per week or is being paid a fixed salary
or hourly rate for the performance of his/her duties, but shall not
include any person furnishing professional or extraordinary unspecifiable
services under separate appointment, retainer, agreement or contract,
and shall also include persons formerly holding office or employment;
provided, however, that the events giving rise to a cause of action
or claim for which indemnification is sought must have occurred after
January 1, 1994, and any claim based on an event prior to that date
shall not be covered by this chapter.
A.
Pursuant to the authority granted by provisions of the New Jersey
Tort Claims Act, N.J.S.A. 59:10-4, the Township of Washington, Burlington
County, does hereby authorize and provide to its employees and officials
indemnification in accordance with the indemnification provision applicable
to all state employees under the New Jersey Tort Claims Act.
B.
The Township does also hereby authorize indemnification of any persons
formerly or presently holding any office, position or employment,
elective or appointive, hereafter referred to as an "employee" in
accordance with the provisions herein.
A.
Except as otherwise provided herein, the Township shall indemnify
and save harmless any employee from financial loss resulting from
any civil action, suit or proceeding, including a cross-action, counterclaim
or cross-complaint, against such employee on account of any act or
omission done in the scope of his/her employment; provided, however,
that the act or failure to act does not arise out of actual fraud,
willful misconduct or actual malice.
B.
The Township shall defray all costs of defending legal action against
said employee, including attorney's fees, court costs and expert
or technical witness fees and any amount paid in settlement thereof
and actually and reasonable incurred in connection wherewith, to the
extent permitted by general law. Expenses thus incurred may be paid
in advance of final disposition of the action.
C.
Nothing herein shall authorize the Township to pay for damages resulting
from the commission of a crime; however, the Township shall indemnify
and save harmless each employee from financial loss resulting from
any action described above, including punitive or exemplary damage,
if, in the opinion of the governing body, 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.
An employee shall not be entitled to indemnification or the
cost of defense under this chapter unless, within seven days of the
time such employee is served with any summons, order to show cause,
complaint, process, notice, demand or pleading, he/she delivers the
same or a copy thereof to the Municipal Clerk, who shall then forthwith
notify the Mayor and Township Solicitor of the pending action; provided,
however, that this time period may be extended for good cause by the
affirmative vote of a majority of the full membership of the governing
body.
The Township may provide any defense required of it under this
chapter through an attorney from its own staff or by employing other
counsel.
Whenever the Township provides any defense required of it under
this chapter, the Township, through counsel, may assume exclusive
control over the representation of the public employee, and such employee
shall cooperate fully with the defense.
If the municipal official files a counteraction or counterclaim
in the legal proceedings, the municipality shall not be obligated
to reimburse him for attorneys' fees or court costs attributable
to such counteraction.
It shall be within the sole discretion of the governing body
to decide whether to pay for the costs of counsel beyond the trial
court level.
A.
The governing body shall disclaim liability for coverage of defense
costs if any of the following conditions shall occur:
(1)
The employee is covered by insurance for the cost of his/her defense;
(2)
The Township is a party complaining against the employee;
(3)
Any of the acts or omissions complained of was the product of actual
fraud, actual malice or willful misconduct;
(4)
Any of the acts or omissions complained of was not within the scope
of the employee's duties, powers or responsibilities;
(5)
The defense of the action or proceeding would create a conflict of
interest between the Township and the employee; or
(6)
Where the action is a criminal or disciplinary action.
B.
The governing body shall determine not later than 30 days following
the termination of the case and submission by the employee's
counsel to the Township Clerk an itemized bill (together with copies
of all documents, pleading, exhibits, transcripts and other papers
filed in the case) whether it will disclaim liability for coverage
of defense costs.
C.
The governing body shall consider in its determination the pleadings,
evidence and arguments brought out in the case, the verdict (if any)
and any additional pertinent considerations; provided, however, that
the Township may not disclaim coverage under this chapter if there
shall have been a specific determination by the trier of fact that
the employee's actions or omissions complained of were within
the employee's scope of employment, duties and responsibilities
and, further, that the employee's actions or omissions complained
of did not involve actual fraud, actual malice, or willful misconduct.
D.
The governing body's determination shall be subject to judicial
review and, where provision of defense costs has been wrongfully withheld
by the governing body, the employee shall be reimbursed under this
chapter.
An employee claiming indemnification under this chapter shall
cooperate fully and in good faith with the Township and with any attorneys,
adjusters, investigators or experts or technical personnel engaged
by the employee for the preparation and presentation of a defense
to such action or the settlement or other disposition thereof, including
any counsel or other professionals engaged independently by the municipality,
and if the employee neglects, fails or refuses to cooperate as herein
required, the governing body, after a hearing on 10 days' written
notice to the employee and for cause, may declare all rights created
under this chapter for the benefit of such employee to be forfeited
and terminated by the affirmative vote of a majority of the full membership
of the Township Committee.
