[HISTORY: Adopted by the Mayor and Borough Council of the Borough of Berlin 4-1-2004 by Ord. No. 2004-06. Amendments noted where applicable.]
Officers and employees — See Ch. 46.
Except as hereinafter provided, the Borough of Berlin, hereinafter known as "the Borough" shall, upon the request of any present or former official, employee or appointee of the Borough, provide for indemnification and legal defense of any civil action brought against said person or persons arising from an act or omission falling within the scope of their public duties.
The terms of this chapter and the definition of official, employee and appointee are to be construed liberally in order to effectuate the purposes of this chapter, except that these terms shall not mean: a) any person who is not a natural person; b) any person while providing goods or services of any kind under any contract with the Borough except an employment contract; c) any person while providing legal or engineering services for compensation unless said person is a full-time employee of the Borough; and d) any person who as a condition of his or her appointment or contract is required to indemnify and defend the Borough and/or secure insurance.
The Borough shall provide for defense of and indemnify any present or former official, employee or appointee of the Borough who becomes a defendant in a civil action if the person or persons involved: a) acted or failed to act in a matter in which the Borough has or had an interest; b) acted or failed to act in the discharge of a duty imposed or authorized by law; and c) acted or failed to take action in good faith. For purposes of this chapter, the duty and authority of the Borough to defend and indemnify shall extend to a cross-claim or counterclaim against said person.
The Borough shall not indemnify any person against the payment of punitive damages, penalties, or fines, but may provide for the legal defense of such claims in accord with the standards set forth herein. The Borough may refuse to provide for the defense and indemnification of any civil action referred to herein if the Mayor and Council determines that: a) the act or omission did not occur within the scope of a duty authorized or imposed by law; b) the act or failure to act was the result of actual fraud, willful misconduct or actual malice of the person requesting defense and indemnification; or c) the defense of the action or proceeding by the Borough would create a conflict of interest between the Borough and the person or persons involved.
In any other action or proceeding, including criminal proceedings, the Borough may provide for the defense of a present or former official, employee or appointee, if the Mayor and Council concludes that such representation is in the best interest of the Borough and that the person to be defended acted or failed to act in accord with the standards set forth in this chapter.
Whenever the Borough provides for the defense of any action set forth herein and as a condition of such defense, the Borough may assume exclusive control over the representation of such persons defended, and such person shall cooperate fully with the Borough.
The Borough may provide for the defense pursuant to this chapter by authorizing its Attorney to act in behalf of the person being defended or by employing other counsel for this purpose or by asserting the right of the (Borough) under any appropriate insurance policy that requires the insurer to provide defense.