[Ord. 362, 3/12/2001]
1.
This Part is intended to give each past, present and future Council
member, Borough officers (elected or appointed) and Borough employee
the broadest right of indemnification and defense permitted under
law. This Part is intended to encourage competent individuals to serve
the Borough without inordinate fear that their good-faith conduct,
even if determined to be negligent, will subject them to substantial
personal liability. This Part is intended to recognize that persons
serving the Borough do so in reliance upon the belief that they will
be indemnified and defended against any kind of liability arising
from their good-faith actions and that any future diminution in the
scope of indemnity and defense granted under this Part can fairly
and equitably apply only to conduct occurring after such diminution
takes effect.
2.
In applying and interpreting the provisions of this Part, Council
members, Borough officers and Borough employees shall be presumed
to have acted reasonably and in good faith and in the best interests
of the Borough.
[Ord. 362, 3/12/2001]
The Borough shall indemnify and defend any past, present or
future Council member, Borough officer or Borough employee against
all costs and expenses actually and reasonably incurred by him or
imposed upon him in connection with any claim, action, suit, proceeding
or investigation, instituted or threatened, of any kind including,
but not limited to, matters which are civil, criminal, administrative,
surcharge or investigative in nature, whenever such claim, action,
suit, proceeding or investigation arises in whole or in part by reason
of such Council member, Borough officer or Borough employee having
served in such capacity with or for the Borough or by reason of any
act or omission done or omitted or alleged to have been done or omitted
by such person within the scope of such person's office or employment
with the Borough or by reason of any act or omission alleged to have
been done or omitted by such person, which such person in good faith
reasonably believes to be within the scope of their Borough office
or employment or to be in the Borough's best interest.
[Ord. 362, 3/12/2001]
"Costs and expenses" shall include any award, damages, restitution,
judgment, fines, penalties, amounts ordered to be paid, amounts agreed
to be paid in settlement, reasonable attorney's fees and other reasonable
expenses and disbursements paid in connection with the defense of
such person including, but not limited to, amounts ordered or agreed
to be paid to the Borough itself.
[Ord. 362, 3/12/2001]
The Borough shall promptly pay for such costs and expenses as
they are incurred, provided that the person to be indemnified and
defended has made written request to the Borough for such indemnification
and defense.
[Ord. 362, 3/12/2001]
The right to indemnification and defense set forth in this Part
shall apply to acts or omissions which pre-date the adoption of this
Part as well as those which may post-date adoption of this Part, regardless
of when any claim, action, suit, proceeding or investigation in connection
therewith may arise. The right to indemnification and defense as set
forth in this Part at the time of its adoption is intended to be in
the nature of a vested right such that, should this Part be revised
or become inoperative so as to diminish the right of indemnification
and defense presently set forth herein, Council members, Borough officers
and Borough employees will continue to be entitled to the full right
of indemnification and defense set forth in this Part at the time
of its adoption with respect to any occurrence, action, omission or
thing done prior to such revision in this Part or prior to this Part
becoming inoperative. Any successor to the Borough shall be subject
to all of the obligations of the Borough to indemnify and defend as
set forth herein.
[Ord. 362, 3/12/2001]
The Borough may purchase and maintain insurance on behalf of
any past, present or future Council member, Borough officer or Borough
employee against any liability asserted against him and incurred by
him in such capacity or arising out of his status or his acts or omissions
as a Council member, Borough officer or Borough employee. To the extent
that insurance coverage is available for any person entitled to indemnification
and a defense hereunder, the Borough will require such person to look
to such insurance for indemnification and defense, and will give written
notice of same to the person requesting indemnification and defense.
[Ord. 362, 3/12/2001]
The Borough may decline to provide a defense if the Borough
determines, pursuant to a confidential, nonpublic local agency law
proceeding, that the act or omission which gives rise to the action,
suit, claim, proceeding or investigation constituted a crime, actual
fraud, actual malice or willful misconduct; however, if it is judicially
or administratively determined, at any time, that such act or omission
did not constitute a crime, actual malice, actual fraud or willful
misconduct, the Borough shall promptly reimburse such person for all
costs and expenses incurred in connection with such suit, claim, proceeding
or investigation and shall provide a defense from the time of such
determination forward.
[Ord. 362, 3/12/2001]
Notwithstanding anything to the contrary herein, the Borough
shall not indemnify a Council member, Borough officer or Borough employee
where such person's acts or omissions are finally judicially determined
to constitute a crime, actual fraud, actual malice or willful misconduct.
[Ord. 362, 3/12/2001]
If the Borough provides indemnification or a defense hereunder,
and it is subsequently judicially determined that the act or omission
of the person receiving the indemnification or defense constituted
a crime, actual malice, actual fraud or willful misconduct, such person
shall fully reimburse the Borough for all costs and expenses paid
by the Borough.
[Ord. 362, 3/12/2001]
When the Borough provides a defense hereunder, it may assume
exclusive control of the defense, keeping the person defended advised
with respect thereto, and the person defended shall cooperate fully
with the defense. The Borough may, and upon request of the person
defended for good cause or where the interests of the person defended
and the Borough conflict, shall, supply independent representation.
[Ord. 362, 3/12/2001]
Should any person claiming rights to indemnification or a defense
under this Part reasonably require the services of legal counsel in
order to assert such rights, and should such person prevail to any
substantial extent in asserting such rights, then the Borough shall
reimburse such person for all reasonable attorneys fees and costs
incurred by such person in connection with the assertion of such rights.
