[HISTORY: Adopted by the Mayor and Council of the Borough of Bradley Beach by Ord. No. 2002-17 (Sec. 3-15 of the 1974 Code). Amendments noted where applicable.]
As used in this chapter, the following terms shall have the meanings indicated:
- Any report, formal or informal, of a demand for compensation for damages for injuries allegedly caused by an employee 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.
- Any person employed by the Borough, including elected officials, constitutional officers and their employees, and volunteers performing services on behalf of the Borough of Bradley Beach while actually performing those services, and members and officers of the municipality. The term does not include members of the judiciary for whom indemnification is provided by the State of New Jersey or persons or entities performing services under a nonemployment contract with the municipality.
- The cost of defense, which may, at the Borough's option, be provided by the Department of Administration, and all sums which the employee would be legally obligated to pay as compensatory damages or in settlement of any claim against the employee for matters arising from or related to actions taken in the course of employment with the Borough, whether the claim is presented during the period of the employee's employment or thereafter, and shall include the payment of salary or wages for any employee who, by reason of an indemnified claim, is absent from his or her work station for the purpose of attending legal proceedings or other business in connection therewith and the Borough would otherwise be responsible for payment of the employee's salary or wages. The term shall also include all sums which the employee would be legally obligated to pay in the nature of exemplary or punitive damages in the event that the Borough Council shall be of the opinion, upon the advice of the Borough Attorney, that 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, pursuant to Chapter 340 of the Laws of 1987 (N.J.S.A. 59:10-4 as amended).
Employees, as defined herein, will be indemnified, as defined herein, by the Borough of Bradley Beach where it appears to the Borough Attorney, after preliminary investigation, that all of the following circumstances exist:
The act or acts complained of took place during a time when the employee was actually performing services on behalf of the Borough, whether or not during formal working hours.
It reasonably appears that the employee was acting within the scope of Borough of Bradley Beach employment or duties, and in furtherance thereof, in the performance of the act or acts giving rise to the claim and the employee so avers.
The employee has notified his or her department head and the Borough Council, in writing, within seven working days of notice of the claim, enclosing a copy of the claim and all relevant documents. Former employees shall be responsible for notifying the Borough Council within seven working days and shall be required to enclose the same documentation as is required of the current employee. The Borough Council shall promptly acknowledge receipt of the claim and advise the employee and department head, where appropriate, as to whether indemnification hereunder will be provided. Upon compliance with the provisions of this chapter, and subject to the provisions of this chapter, indemnification shall be mandatory.
The Borough Council may determine, after preliminary investigation of the matter and taking all circumstances into account, that indemnification is not warranted if:
The employee, in performing the act complained of, was acting wrongfully with the intent to injure another;
The employee was acting for the purpose of personal gain;
The employee was acting in a manner which violated state or federal law, including but not limited to civil service rules and regulations or established, written Borough of Bradley Beach policy of which the employee was or ought to have been aware; or
The acts committed by the employee constituted actual fraud, actual malice, willful misconduct or an intentional wrong, and the Borough Council elects not to provide indemnification hereunder pursuant to Chapter 340 of the Laws of 1987 (N.J.S.A. 59:10-4, as amended) and this chapter.
The decision to indemnify based upon preliminary investigation is not final and binding upon the Borough Council. 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 employee was acting in a manner which does not entitle him or her to indemnification for the reasons stated in § 34-3 above, the Monmouth County Counsel may revoke the indemnification. Further, should the employee unjustifiably fail or refuse to cooperate in defending the claim, indemnification may be revoked.
By accepting the indemnification from the Borough of Bradley Beach in accordance with this chapter, the employee agrees that the Borough may perform such investigations and enter into such negotiations on the employee's behalf as the Borough shall deem necessary and proper and may settle any claims, regardless of whether the Borough actually feels the allegations are groundless or false. In the event that the employee refuses to consent to any settlement, the Borough shall be liable only for that amount for which the Borough could have settled the claim had the employee consented.
This chapter shall not create, nor shall it be construed as, a contract of insurance between the Borough of Bradley Beach and any employee. The Borough 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 employee's behalf or to tender its limits of coverage in order to avoid excess liability on the employee's part.
Where an employee has been charged with a criminal offense or an offense under the Motor Vehicle Law of the State of New Jersey, it may be that, regardless of the outcome of the charge, disciplinary action will be taken against the employee based on the underlying facts. Accordingly, representation will not be provided by the Borough Attorney unless there is a specific provision to the contrary in the applicable collective bargaining agreement. Employees without such a contract provision who desire counsel will be required to retain their own attorney.
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.