Delaware General Assembly

AN ACT TO AMEND THE CHARTER OF THE TOWN OF GREENWOOD, CHAPTER 109, VOLUME 68, LAWS OF DELAWARE, AS AMENDED, TO ALLOW THE TOWN TO INDEMNIFY ANY COUNCILMEMBER, THE MAYOR AND/OR OTHER DULY ELECTED OR APPOINTED TOWN OFFICIAL OF THE TOWN OF GREENWOOD WHO IS A PARTY TO, OR IS THREATENED TO BE A PARTY TO ANY THREATENED, PENDING , OR COMPLETED ACTION, SUIT OR PROCEEDING, WHETHER CIVIL, CRIMINAL, OR ADMINISTRATIVE, OR ARISING OUT OF ACTIONS TAKEN BY ANY OR EACH OF THEM IN CONNECTION WITH THE PERFORMANCE OF THEIR OFFICIAL DUTIES.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-thirds of all members elected to each house thereof concurring therein):

(a) Subject to the limitations and conditions hereinafter set forth, the Town shall indemnify, from the general funds of the Town’s Treasury, any person who is a party to, or is threatened to be made a party to any threatened, pending or completed action, suit, or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Town of Greenwood itself) by reason of the fact that he or she is or was a Councilmember, Mayor or other duly elected or appointed Town Official of the Town of Greenwood, or arising out of actions taken by each or any of them in connection with the performance of their official duties, against all expenses (including reasonable attorney’s fees) judgments, fines and amounts paid in settlement, actually and reasonably incurred by him or her in connection with such action, suit or proceeding, if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Town, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the Town of Greenwood, and with respect to any criminal action or proceeding had reasonable cause to believe that his or her conduct was unlawful; provided however, that in the event of a monetary settlement, the Town Council shall first approve the amount and terms of the settlement before the right to indemnification shall vest.

(b) Indemnification as provided by this Charter shall be made by the Town only as authorized in the specific case upon a determination that indemnification of the Councilmember, Mayor and/or Town Officer is proper in the circumstances because he or she met the applicable standards of conduct set forth above. Such determination shall be made:

(1) By a majority vote of a quorum of the Town Council consisting of Council members who were not parties to such action, suit or proceeding, or

(2) If such a quorum is not obtainable, by impendent legal counsel in a written opinion.

(c) The right to indemnification hereunder shall be secondary to the coverages provided by any applicable policy of insurance and such policy(s) shall be construed and enforced as if no right of indemnification existed under this Charter. Nothing in this Section shall eliminate or reduce the scope or amount of coverage that would otherwise be in effect under any applicable policy of insurance but for this Section, and the right to indemnification shall be limited only to those amounts not covered by applicable policies of insurance.

(d) Anything herein to the contrary notwithstanding, the right to indemnification shall be limited, per incident, to a sum not exceeding the Town’s total tax revenues for the two (2) fiscal years immediately preceding the incident giving rise to the claim.”.

Approved May 3, 2007