[HISTORY: Adopted by the Mayor and Board of Aldermen of the Town of Boonton by Ord. No. 12-91. Amendments noted where applicable.]
Except as provided below, the Town shall, upon a request of an employee or former employee of the Town, provide for the defense of any action brought against such Town employee or former Town employee on account of an act or omission in the scope of his or her employment.
For purposes of this chapter, the Town's duty to defend shall extend to counterclaims or cross claims against an employee or former employee.
The Town may refuse to provide for the defense of an action referred to in this chapter if it determines that:
The act or omission was not within the scope of employment;
The act or the failure to act was because of actual fraud, willful misconduct or actual malice;
The action is brought by the Town itself against the officer or employee; or
The employee acted in violation of the Town Code of Ethics.
Nothing in this chapter requires the Town to pay for punitive or exemplary damage or damages resulting from the commission of a crime. The Town may indemnify a Town employee for exemplary or punitive damages resulting from the employee's civil violation of state or federal law if, in the opinion of the Mayor and Board of Aldermen, 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.
It shall be the duty of the employee to immediately notify the Town as to any action threatened against the employee.
As a condition for such defense, the Town may assume exclusive control over the representation of such person defended and such person shall cooperate fully with the Town; provided, however, that such person may at any time and at such person's option take control over representation by waiving all rights to indemnification and all rights to payment for costs of defense.
The Town may provide for the defense pursuant to this chapter by authorizing the Town Attorney to act in behalf of the person being defended, or by employing other counsel for this purpose, or by asserting the Town's right under any appropriate insurance policy which requires the insurer to provide the defense.
If the Town refuses to provide for the defense of an employee as required above, the employee or former employee shall be entitled to indemnification from the Town if he or she establishes that the act or omission upon which the claim or judgment was based occurred within the scope of his or her employment as an employee of the Town of Boonton and if he or she proves that the act or omission was not the result of fraud, malice or willful misconduct.