Ordinance No. 24-07
Introduced: July 12, 2007
Public Hearing: August 7, 2007
Status: Adopted
An ordinance to provide for the defense of civil actions against and the indemnification of public employees of the Township of Randolph
WHEREAS, a municipality may make, amend, repeal and enforce ordinances not contrary to the laws of the State of New Jersey or the United States, as deemed necessary and proper for good government, order and protection of persons and property in accordance with N.J.S.A. 40:48-2; and
WHEREAS, it has been determined by the Mayor and Council of the Township of Randolph (Township) that the Township is authorized pursuant to N.J.S.A. 59:10-4 to provide for the indemnification of its public employees; and
WHEREAS, the Mayor and Council of the Township desire to so provide through adoption of an ordinance establishing the standards and procedures for the defense of civil actions against and the indemnification of the Township’s public employees.
NOW, THEREFORE, BE IT ORDAINED by the Governing Body of the Township of Randolph, County of Morris, State of New Jersey as follows:
SECTION ONE. Section 1-2 of the Revised Ordinances of the Township of Randolph, is hereby amended by the addition of the following definition:
PUBLIC EMPLOYEE. The term public employee means any current or former elected or appointed official, officer or member of the boards, agencies and commissions of the Township or employee or servant, whether or not compensated or part-time, who is or was authorized by the Township to perform any act or service; provided, however, that this term does not include an independent contractor.
SECTION TWO. Section 2 of the Revised Ordinances of the Township of Randolph, is amended by the addition of Sections 2-132 through 2-137, as follows:
Sec. 2-132. Defense and Indemnification.
It is the intent and purpose of Sections 2-132 through 2-137 of the Revised Ordinances of the Township to provide for the defense of civil actions against and the indemnification of public employees as permitted by N.J.S.A. 59:10-4, et seq.
Sec. 2-133. Defense of Civil Actions.
If a public employee is served with any summons, complaint, process, notice, demand or pleading in any civil action, the public employee shall deliver the original or copy of same within twenty (20) calendar days after the time the public employee is served with any summons, complaint, process, notice, demand or pleading in any civil action to the Township Clerk.
The Township will first notify its insurance carrier of the civil action and request that said insurance carrier provide a defense for the public employee. If the Township’s insurance carrier agrees to provide a defense, then the Township’s obligation to do so shall be automatically delegated to the Township’s insurance carrier with no further formal action by the Township.
If the Township’s insurance carrier declines to provide a defense, except as provided in Section 2-134, the Township Council, upon its approval of a request submitted by a public employee, shall provide a public employee with the necessary defense of any civil action brought against the public employee, including cross claims or counterclaims, where the Township Council has determined that:
a. The public employees act or omission complained of was within the scope of his or her employment; and
b. Said act or omission did not constitute a crime, actual fraud, actual malice or willful misconduct.
Upon approval by the Township Council of a public employee’s request to provide a defense, the public employee shall select an attorney from a list of attorneys provided by the Township within ten (10) days of the Township Council’s approval of the defense of the public employee.
If the public employee fails to select an attorney from the list of attorneys provided by the Township within the ten (10) day period stated above, the Township shall neither provide a defense nor provide indemnification for the public employee.
If the public employee elects not to utilize the procedure set forth in Sections 2-132 through 2-137 herein, the Township shall neither provide a defense of the public employee nor indemnify the public employee for any costs, fees, or judgments incurred by the public employee in the defense of the civil action.
Sec. 2-134. Exceptions to Defense of Civil Actions.
The provisions of Section 2-133 shall not be applicable when:
a. The defense of the civil action or proceeding is fully provided for by an insurance policy or policies, whether obtained by the Township or by any other person;
b. The legal action has been brought by the Township against the public employee;
c. The legal action is a criminal or disciplinary action; or
d. The public employee failed to deliver to the Township Clerk, within twenty (20) calendar days after the time the public employee is served with any summons, complaint, process, notice, demand or pleading, the original or a copy of the same.
Sec. 2-135. Indemnification of Compensatory Damages.
a. The Township shall indemnify a public employee for compensatory damages assessed in any civil action for which a defense is provided by the Township under Sections 2-132 through 2-137 herein, provided, however, that the Township shall not indemnify a public employee for any compensatory damages arising out of an act or omission which is found by the trier of fact to constitute a crime, actual fraud, actual malice or willful misconduct.
b. For the purposes of Sections 2-132 through 2-137 herein, compensatory damages shall include any bona fide settlement agreements entered into on behalf of a public employee and approved by the Township Council in a civil action for which a defense has been provided by the Township under Sections 2-132 through 2-137.
c. In any case where the Township would be required to provide a defense under Sections 2-132 through 2-137 herein, except for the fact that such defense is provided for through an insurance policy, the Township shall provide indemnification as aforesaid, but only to the extent not covered by insurance.
Sec. 2-136. Indemnification of Punitive Damages.
The Township shall not indemnify a public employee for punitive damages assessed in any civil action for which a defense is provided by the Township under Sections 2-132 through 2-137 herein. When the Township provides the necessary defense of any civil action under Sections 2-132 through 2-137 herein, simultaneous with the selection of the attorney as set forth herein, the employee shall sign an agreement which provides that where the Township provides a defense to the employee, if the public employee is found liable for punitive damages, the Township shall not indemnify the public employee for any punitive damages and that the public employee is solely responsible for the payment of any punitive damages.
Sec. 2-137. Control Representation.
Whenever the Township provides any defense required of it under Sections 2-132 through 2-137 herein, the Township, through counsel, shall assume exclusive control over the representation of the public employee, including, but not limited to, control of the investigation of and negotiations to settle any claim against the public employee and such employee shall cooperate fully with the defense. In the event the public employee fails to cooperate fully with the defense, the Township(s obligation pursuant to Sections 2-132 through 2-137 herein shall cease.
SECTION THREE. All ordinances of the Township of Randolph which are inconsistent with the provisions of this Ordinance are hereby repealed as to the extent of the inconsistency.
SECTION FOUR. If any section, subsection, clause or phrase of this Ordinance is for any reason held to be unconstitutional or invalid by any Court of competent jurisdiction, such decision shall not effect the remaining portion of this Ordinance.
SECTION FIVE. This Ordinance shall take effect immediately upon final passage, approval, and publication as provided by law.
ATTEST
_____________________________
Donna Marie Luciani, Township Clerk
TOWNSHIP OF RANDOLPH
_____________________________
Michael Obremski, Mayor
CERTIFICATION
I, Donna Marie Luciani, Township Clerk, Township of Randolph, County of Morris, State of New Jersey, do hereby certify the foregoing to be a true copy of an Ordinance introduced, read by title, and passed on first reading at a regular meeting of the Randolph Township Council held on July 12, 2007 and adopted by the Governing Body at a regular meeting of the Township held on August 7, 2007.
_____________________________
Donna Marie Luciani, Township Clerk
LEGAL NOTICE
TOWNSHIP OF RANDOLPH, COUNTY OF MORRIS
ORDINANCE NO. 24-07
NOTICE IS HEREBY GIVEN that an Ordinance entitled “An Ordinance To Provide For The Defense Of Civil Actions Against And The Indemnification Of Public Employees Of The Township of Randolph” was submitted in writing at a regular meeting of the Mayor and Council of the Township of Randolph, County of Morris, State of New Jersey, held on July 12, 2007 and was introduced, read by title and passed on first reading. A Statement of Purpose of the Ordinance is contained below. The Governing Body of the Township of Randolph will further consider the Ordinance for second reading and final passage thereof at their regular meeting to be held on August 7, 2007 at 8 p.m. prevailing time, at the Municipal Building, 502 Millbrook Avenue, Randolph, New Jersey 07869, at which time and place a public hearing will be heard thereon by the Governing Body and all parties in interest and citizens shall have an opportunity to be heard concerning said Ordinance.
Statement of Purpose of Ordinance
The purpose of the above Ordinance is to adopt standards and procedures for the defense of civil actions against and the indemnification of public employees of the Township of Randolph.
A copy of the full Ordinance is available to any member of the general public, without cost, at the Township of Randolph, Municipal Building, Millbrook Avenue, Randolph, New Jersey, at the Office of the Township Clerk, between the hours of 9:00 a.m. and 4:30 p.m.
_____________________________
Donna Marie Luciani, Township Clerk
Township of Randolph
County of Morris, State of New Jersey