22 NEW JERSEY COPS ■ APRIL 2018
Maintain your eligibility for indemnification if you ’ re sued or charged
Indemnification is where one party bears the monetary costs , either directly or by reimbursement , for losses incurred by a second party . When it comes to State employees , including law enforcement officers , indemnification is governed by the Tort Claims Act . Specifically , N . J . S . A . 59:10-1 reads :
STUART If pursuant to the provisions of P . L . 1972 , c . 48 ( C . 59:10A-1 et seq .) the Attorney General provides for the
ALTERMAN defense of an employee or former employee , the State shall provide indemnification for the State employee .
Nothing in this section requires the State to pay for punitive or exemplary damages or damages resulting from the commission of a crime . The State may , however , indemnify a State employee for exemplary or punitive damages resulting from the employee ’ s civil violation of State or federal law if , in the opinion of the Attorney General , the acts committed by the State employee upon which the damages are based did not constitute actual fraud , actual malice , willful misconduct , or an intentional wrong . A refusal by the New Jersey attorney general does not end a state law enforcement officer ’ s ability to later seek indemnification . For example , N . J . S . A . 59:10-2 provides :
If the Attorney General refuses to provide for the defense of a State employee as required by the provisions of P . L . 1972 , c . 48 ( C . 59:10A-1 et seq .), the employee or former employee of the State shall be entitled to indemnification from the State if he establishes that the act or omission upon which the claim or judgment was based occurred within the scope of his employment as an employee of the State and the State fails to establish that he acted or failed to act because of actual fraud , actual malice or willful misconduct .
If the State employee establishes that he was entitled to a defense under the provisions of this chapter , the State shall pay or reimburse him for any bona fide settlement agreements entered into by the employee , and shall pay or reimburse him for any judgments entered against the employee , and shall pay or reimburse him for all costs of defending the action , including reasonable counsel fees and expenses , together with costs of appeal , if any .
Nothing in this section requires the State to pay for punitive or exemplary damages or damages resulting from the commission of a crime . The State may indemnify a State employee for exemplary or punitive damages resulting from the employee ’ s civil violation of State or federal law if , in the opinion of the Attorney General , the acts committed by the State employee upon which the damages are based did not constitute actual fraud , actual malice , willful misconduct , or an intentional wrong . Indemnification is available not only for law enforcement officers who are sued in civil court , but also law enforcement officers who successfully defeat criminal charges in municipal , state or federal court . Specifically , N . J . S . A . 59:10-2.1 mandates :
If any criminal action is instituted against any State officer based upon an act or omission of that officer arising out of and directly related to the lawful exercise of his official duties or under color of his authority , and that action is dismissed or results in a final disposition in favor of that officer , the State shall reimburse the
Officers ’ Rights
officer for the cost of defending the action , including reasonable attorney ’ s fees and costs of trial and appeals . However , there are strict time limits by which a state law enforcement officer must notify the State that he or she is seeking indemnification . One of those time restrictions is found in N . J . S . A . 59:10-2.2 , which requires :
A claim for reimbursement shall be filed within the time and in the manner provided for claims for damage or injury under chapter 8 of Title 59 of the New Jersey Statutes , except where the procedure prescribed in that chapter is inconsistent with the nature of a claim resulting from a criminal action . Cross-referencing to Chapter 8 of Title 59 tells a state law enforcement officer that his or her Tort Claim Notice must be filed within 90 days of him or her having reasonable notice that he or she might be entitled to indemnification .
An even more strict additional notice requirement is found in N . J . S . A . 59:10-3 :
A state employee shall not be entitled to indemnification under this act unless within 10 calendar days of the time he is served with any summons , complaint , process , notice , demand or pleading , he delivers the original or a copy thereof to the Attorney General or his designee . Upon such delivery the Attorney General may , pursuant to the provisions of P . L . 1972 , c . 48 Senate Bill No . 993 now pending before the Legislature , assume exclusive control of the employee ’ s representation and such employee shall cooperate fully with the Attorney General ’ s defense . In the real world , 10 calendar days can fly by for any law enforcement officer , whose priorities include family , job and other community involvement . However , those priorities must take a temporary backseat when served with a summons , complaint , process , notice , demand , pleading and / or criminal charges . Thus , communication with one ’ s PBA Local and one ’ s attorney is vital . Additionally , giving notice up the chain of command normally satisfies any notice requirement , since the supervisor of the law enforcement officer is tasked with certain responsibilities solely based upon being a supervisor .
The Tort Claims Act does not mandate that any county or municipality actually provide indemnification to its employees , including law enforcement officers . However , it does give counties and municipalities the power to provide such indemnification . Specifically , N . J . S . A . 59:10-4 allows :
Local public entities are hereby empowered to indemnify local public employees consistent with the provisions of this act . A local public entity may indemnify an employee of the local public entity for exemplary or punitive damages resulting from the employee ’ s civil violation of State or federal law if , in the opinion of the governing body of the local public entity , 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 . New Jersey courts have held for more than a century that a public official is entitled to compensation or expenses incurred in the performance of his or her official duties . This long-held stance to reimburse public officials for the defense of cases brought against them for acts within their official duties com-