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[HISTORY: Adopted by the Township Committee of the Township of Hainesport 7-30-1991 by Ord. No. 1991-6-6. Amendments noted where applicable.]
[Amended 10-13-2020 by Ord. No. 2020-7]
A present or former employee, appointee or official who becomes a defendant in a civil action for any action or omission arising out of the performance of the duties of such office, position, or employment, where the defendant is not covered by insurance and where, in the opinion of the Township Committee, upon advice of the Township Solicitor, the Township's interests are not divergent or adverse to those of the defendant, shall be entitled (under the terms and conditions of this chapter) to be provided with legal defense by the Township, except as otherwise provided herein.
Within five working days of the time when a defendant is served with any summons, complaint, process, notice, demand or pleading, the defendant must deliver the aforesaid documents to the Township Clerk as a condition of receiving legal defense as herein provided.
The Township Solicitor (or his designee) shall act as counsel for the defendant unless the Solicitor shall determine (at any stage in the proceedings) that the apparent interests of the defendant and the Township diverge to the extent that the defendant should be represented by separate counsel, in which event the separate counsel shall be chosen by the defendant from among three nominees proposed by the Township Solicitor and shall enter into a professional services contract with the Township in accordance with the Local Public Contracts Law.[1]
[1]
Editor's Note: See N.J.S.A. 40A:11-1 et seq.
A. 
The Township shall disclaim liability for coverage of defense costs if any of the acts or omissions complained of was the product of actual fraud, actual malice or willful misconduct or not within the scope of the defendant's duties, powers or responsibilities.
B. 
The Township shall have the right to disclaim coverage for the above-stated reasons at any time during the proceedings, but such disclaimer may not be made after 30 days following the conclusion of the case.
C. 
In the event that the Township should rightfully disclaim coverage, the defendant shall be liable to the Township for any counsel fees and defense expenses incurred by the Township as a result of its defense of the defendant.
D. 
In determining to disclaim coverage, the Township Committee shall consider the pleadings, the information revealed in the investigation and discovery proceedings, the evidence and arguments brought out in the case, the verdict (if any) and any additional pertinent considerations.
E. 
The Township Committee's determination to disclaim coverage shall be subject to judicial review; where coverage has been wrongfully denied, the Township shall reimburse the defendant for all defense costs not already paid by the Township and for all costs incurred in prosecuting against the Township the action for reimbursement.
In the event that the defendant shall have accepted the defense provided by the Township under the terms of this chapter, no settlement shall be entered into by the defendant without the express written approval of the Township Committee.
Any person seeking to be provided with defense under this chapter must agree, in writing, to accept the terms and conditions of this chapter, including (but not limited to) the obligation to reimburse the Township for its actual expenses in providing defense in the event of a rightful disclaimer of coverage.