[HISTORY: Adopted by the Mayor and Board
of Aldermen of the Town of Boonton by Ord. No. 12-91. Amendments noted where applicable.]
A.
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.
B.
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:
A.
The act or omission was not within the scope of employment;
B.
The act or the failure to act was because of actual
fraud, willful misconduct or actual malice;
C.
The action is brought by the Town itself against the
officer or employee; or
D.
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.
