Page 6 THE VILLADOM TIMES I • June 9, 2010 Franklin Lakes Updated indemnification ordinance gains approval by Frank J. McMahon The Franklin Lakes Borough Council had adopted an ordinance that amends and updates the language regarding the defense and indemnification of certain officials, employees, and appointees of the borough that has existed in the borough code since 1988. Franklin Lakes Borough Administrator Gregory Hart advised that, a couple of months ago, Mayor Maura DeNicola and the members of the borough council attended a train- ing session for elected officials conducted by the Bergen County Municipal Joint Insurance Fund. During that training session, the instructor referred to a model ordinance on defense and indemnification and, when that model ordinance was compared to the borough’s existing ordinance, the governing body decided to make some changes. Hart said the updates are not major substantive changes. According to the rewritten ordinance, its intent and purpose is to provide for the indemnification and defense of actions against certain public officials and employees. The ordinance provides that the definition of “official employee and appointees” should be construed liberally. The ordinance defines a municipal official as any present or former officer or official employee, council member, mayor, board member, or other individual appointed or hired by the mayor or the borough council or the borough administrator to full or part time positions. The definition also includes any volunteer serving the borough on the recreation commission or as a coach or assistant on a team organized under the auspices of the recreation commission, or a member of the volunteer fire department or the ambulance corps. The definition also includes any individual elected by the voters to fill any official position in the borough, or any individual subsequently appointed to fill such a position. The ordinance will cover any request by a present or former official, employee, or appointee of the borough to provide for indemnification and legal defense of any civil action brought against that individual which arises from an act or omission that falls within the scope of their public duties. The duty and authority of the borough to defend and indemnify that individual will extend to a cross claim, third party claim, or counter claim against that individual. In any case where the borough is required to provide a defense under this ordinance, the borough must pay for any bona fide settlement agreement entered into by the borough on behalf of the employee and any judgment entered against the employee. If the borough is required to provide a defense under this ordinance and that defense is provided for by insurance, either through a policy of the borough or the individual, the borough must provide for indemnification as previously described, but only to the extent that any liability exists which is not covered by insurance and not excepted by other sections of this ordinance. The indemnification and defense provided for in this ordinance includes exemplary or punitive damages resulting from an employee’s civil violation of state or federal law if 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. The following are excluded from the definition of official employee and appointee and excluded from coverage under this ordinance: entities such as corporations; any individual while he or she is providing goods or services of any kind under any contract with the borough, except an employment contract; any individual while he or she is providing legal or engineering services for compensation, unless that individual is a full time employee of the borough; and any individual who, as a condition of his or her appointment or contract, is required to indemnify and defend the borough and/or secure insurance. 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 borough concludes that such representation is in the best interest of the borough and that the individual to be defended acted, or failed to act, in accord with the standards described in this ordinance. Whenever the borough provides for the defense of any action as described in this ordinance, the borough may assume exclusive control over the representation of such individuals defended as a condition of that defense and those individuals must cooperate fully with the borough. In addition, the borough may provide for the defense of those individuals under this ordinance by authorizing its attorney to act on behalf of the individual 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 that defense.