Section
1. Amend Chapter 295, Volume 68, Laws of
Delaware, as amended, by adding a new Section 36 as follows:
“Section
36.
(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 apposed 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.”.
Section 2. This Bill shall become effective immediately
upon the Governor’s signature, and shall apply to all claims, suits, actions or
proceedings filed or commenced after January 1, 2005.
