Kilkenny, Carton and Rosen. The opinion of the court was delivered by Kilkenny, J.A.D.
The six intervenors, former members of the Board of Education of Mansfield Township, who were sued individually by plaintiff in other separate suits for libel, appeal from a judgment of the Law Division in favor of plaintiff and defendant board of education, rejecting the claim of the intervenors that the board of education be directed to pay the legal fees and expenses in defending them in libel actions.
This matter is before us for the second time. In our earlier opinion, 81 N.J. Super. 414 (1963), we affirmed a summary
judgment in favor of plaintiff, prohibiting the board of education from spending public funds for the legal defense of board members sued individually for libel. We deemed the allegedly tortious conduct to be the personal responsibility of the individual defendants and, under the particular facts of the case, not entitled to be defended at the public expense.
The Supreme Court granted certification, 41 N.J. 519 (1964), and thereafter reversed and remanded the matter so that a full record could be made in the libel actions. The Supreme Court deemed the meager record before it inadequate to resolve the question. The board agreed not to spend the public funds in the interim. 42 N.J. 320 (1964).
Depositions were then taken in the libel actions. Following the depositions, on January 12, 1966 a stipulation was entered into dismissing with prejudice both libel actions. Plaintiff was paid some consideration for signing the stipulation of dismissal.
The issue of the board's power to pay for the legal defense of its members sued personally for libel was left open in the settlement between plaintiff and the intervenors. At oral argument plaintiff stated that he was under the belief that the settlement made with him included a surrender by the individual board members of their claim for payment of their legal defense by the board. He conceded that such belief is not supported by anything in the settlement papers.
On March 17, 1966 the board rejected the request of the six former members to have their legal fees paid. These six then intervened in this action since they were personally interested and the board, as now constituted, was unwilling to pay and felt that it was legally unable to expend board funds for the legal defense of its former members sued individually for the alleged libels.
Subsequent to our decision and that of the Supreme Court and before the instant action was fully tried before the Law Division sitting without a jury in November 1966, the
Legislature enacted N.J.S.A. 18:5-50.20, effective July 22, 1965. It provides:
"Whenever a civil or a criminal action has been brought against any person for any act or omission arising out of and in the course of the performance of his duties as a member of a board of education, and in the case of a criminal action, such action results in final disposition in favor of such person, the cost of defending such action, including reasonable counsel fees ...