[HISTORY: Adopted by the Township Committee of the Township of Lebanon 4-7-2004 by Ord. No. 2004-04. Amendments noted where applicable.]
Editor’s Note: This ordinance also repealed former Ch. 26, Defense and Indemnification of Officers and Employees, adopted by Ord. No. 12-1979 (Sec. 2-7 of the 1985 Revised General Ordinances), as amended.
As used in this chapter, the following terms shall have the meanings indicated:
- APPOINTED OFFICIAL
- Any person, presently or in the future, appointed to the Lebanon Township Planning Board or the Lebanon Township Board of Adjustment. An appointed official includes alternates of either Board, as well as officials appointed for a full term or for the purpose of filling an unexpired term, and whether or not such official is compensated for the position. The protections and benefits of this chapter shall apply only to those officials specifically defined herein, and not to an official of any other board, body, authority, commission, or committee.
- Any report, formal or informal, of a demand for compensation for damages for injuries allegedly caused by an elected official or appointed official 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 civil or constitutional rights, including false arrest, inverse condemnation and causes of action arising under 42 U.S.C. § 1981 et seq. (Civil Rights Act of 1871), Civil Rights Act of 1964, Civil Rights Act of 1991, the New Jersey Law Against Discrimination, and all other federal, state, and/or local laws under which a claim can be made before any court, judicial or administrative agency, body, board, commissioner, or committee having jurisdiction over the State of New Jersey.
- ELECTED OFFICIAL
- Any person, presently or in the future, elected to the Lebanon Township Committee, whether elected for a full term or for the remaining portion of an unexpired term, and whether or not such official is compensated for the position. For the purposes of this chapter, "elected official" shall also mean any person appointed to complete the unexpired term of an elected official who has failed for any reason to complete that elected official's term in office. The protections and benefits of this chapter shall apply only to those officials specifically defined herein, and not to an official of any other board, body, authority, commission, or committee.
It is the intent and purpose of this chapter to provide for the defense of actions against and the indemnification of elected Township officials and certain other officials for civil actions as permitted by N.J.S.A. 59:10-1 et seq., or any other federal, state and/or local law, and/or as permitted by this chapter. This chapter shall be liberally construed to provide the fullest defense and indemnification allowed by law.
Whenever an elected official or appointed official of the Township of Lebanon is a named defendant in any civil action or civil proceeding arising out of and directly related to the legal performance of his or her duties as an elected official or appointed official of the Township, the Township shall provide such elected official or appointed official with the necessary and reasonable defense and shall hold such elected official or appointed official harmless and indemnify him or her from the payment of any settlement or judgment resulting from the proceedings, except as otherwise set forth in this chapter. The Township shall indemnify elected officials and appointed officials from all civil claims, including defense costs, if and only if such official establishes that the act or omission upon which the claim or judgment was based occurred within the scope of his or her lawful employment as an elected official or appointed official of the Township and that actual fraud, actual malice or willful or wanton misconduct was not the cause of such elected official or appointed official's actions. The following sets forth situations in which the Township shall not have a duty to defend or indemnify:
When the action has been brought by the Township itself or any board, commission or authority established as a subdivision of Township government against such elected official or appointed official.
When the elected official or appointed official has been specifically found by a court or other competent tribunal in the proceedings to have acted with actual fraud, actual malice or willful or wanton misconduct while within the scope of employment, or to have acted outside the scope of employment.
When the elected official or appointed official is found to have violated any of the Township's Code of Ethics or any code of ethics existing by and pursuant to the laws of the State of New Jersey.
The provisions of a defense and indemnification, as set forth in the above sections of this chapter, shall justifiably be refused by the Township if it is the determination of the Township Attorney, in his or her sole and absolute discretion, that:
The act or omission alleged was not within the scope of the person's employment or official duties;
The act or failure to act alleged was because of actual fraud, willful misconduct, actual malice, or intentional wrongdoing;
There exist policies of insurance, either obtained by the Township or otherwise, by virtue of which the elected official or appointed official is entitled to a defense of the action in question from any insurer, including coverage pursuant to the JIF or MEL;
It is not deemed appropriate pursuant to N.J.S.A. 59:10-1 et seq.;
The elected official or appointed official has failed to cooperate fully with the defense provided by the Township;
Where the legal proceeding involves questions concerning election laws; or
The elected official or appointed official fails to notify the Township within 14 calendar days, in writing and with copies of any documents alerting such elected official or appointed official of the pendency or threat of such claim, as to any action threatened against him or her.
Counsel fees to be paid to outside counsel, other than the Township Attorney or the attorney for any board or commission, for services rendered in connection with a claim subject to this chapter, shall be reasonable and shall be established by the governing body through resolution prior to the retention of such counsel. The Township may reimburse an elected official or appointed official for a portion of any expense incurred prior to the final decision in the legal proceeding, at the Township's sole discretion. The Township shall be entitled to wait for a final determination before making a determination to reimburse defense costs and/or honor indemnity.
Nothing in this chapter shall authorize or require the Township to pay for punitive or exemplary damages or damages resulting from the commission of a crime.
The decision to indemnify based upon preliminary investigation is not final and binding upon the Township. 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 elected official or appointed official was acting in a manner which does not entitle him or her to indemnification, the Township Attorney, in his sole and absolute discretion, may revoke the indemnification. Further, should the employee unjustifiably fail or refuse to cooperate in defending the claim, indemnification may be revoked.
By accepting indemnification from the Township in accordance with this chapter, the elected official or appointed official agrees that the Township may perform such investigations and enter into such negotiations on the elected official or appointed official's behalf as the Township shall deem necessary and proper and may settle any claims, regardless of whether the Township actually believes the allegations may be groundless or false. In the event that the elected official or appointed official refuses to consent to any settlement, the Township shall be liable only for that amount for which the Township could have settled the claim had the elected official or appointed official consented, in the sole and absolute discretion of the Township Attorney.
This chapter shall not create, nor shall it be construed as, a contract of insurance between the Township and any elected official or appointed official. The Township shall not be considered an insurer or primary insurer for any purpose and shall not by this chapter be obligated to settle any claim on an elected official or appointed official's behalf or to tender its limits of coverage in order to avoid excess liability on the elected official or appointed official's part.
This chapter 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 chapter.
If the legal proceeding is terminated by an agreement among or between the parties, then the Township shall not be obligated to reimburse the elected official or appointed official, including legal fees, unless the Township approves the settlement agreement prior to its execution.
If the elected official or appointed official files a counteraction in the legal proceedings, the Township shall not be obligated to reimburse for any attorney fees or court costs attributable to such counteraction.