Bischoff, Morgan and E. Gaulkin. The opinion of the court was delivered by Morgan, J.A.D.
[147 NJSuper Page 11] This appeal requires us to determine the scope of a municipality's obligation, imposed by N.J.S.A. 40A:14-155, to provide officers of its police force "with necessary means for the defense" of "any action or legal proceedings arising out of or incidental to the performance of" their duties.
The issue arose when one Frank Stankiewicz commenced action in the United States District Court alleging that eight patrolmen of the Township of Edison (township) deprived him of his civil rights by unlawfully arresting, detaining and assaulting him. The township was also made a party defendant on allegations that it was responsible under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq. , for the acts of these officers and for its negligent failure to properly select, train and supervise them.
Subsequent to the filing of the federal suit defendant officers retained Anthony L. Mezzacca to represent them in connection therewith. Mezzacca sent a letter to the township advising it that he had been retained by the eight officers, and requesting a retainer of $8,000, $1,000 for each officer. Following the receipt of this letter the township sought a declaratory judgment with respect to its officers' right to choose their own counsel at the township's expense. More specifically, the township demanded judgment declaring that the obligation imposed by N.J.S.A. 40A:14-155 is satisfied by providing the services of its attorney in defense of the police officers or, when his services would be inappropriate, by the township's retaining outside counsel by agreement with the municipality as to the services to be provided and the cost thereof.
The trial judge determined, in substance, that the township's contentions were correct. Defendants' insistence that N.J.S.A. 40A:14-155 gave them the right to counsel of their own choosing at municipal expense was deemed to be without merit. Under the given circumstances, however, representation of defendants by the township attorney was held inappropriate because of a potential for a conflict of interest on his part. Instead, the township was ordered to designate outside counsel to represent defendants in the federal court suit, and such selected counsel would be solely obligated to the defendants and not subject to the township's control. The trial judge adjudged that the retention of Anthony Mezzacca by the eight police officers without the consent
of the township could not be at public expenses, although defendants were free to retain him at their own expense. Defendants appeal.
N.J.S.A. 40A:14-155 provides:
Whenever a member or officer of a municipal police department or force is a defendant in any action or legal proceeding arising out of or incidental to the performance of his duties, the governing body of the municipality shall provide said member or officer with necessary means for the defense of such action or proceeding, but not for his defense in a disciplinary proceeding instituted against him by the municipality or in a criminal proceeding instituted as a result of a complaint on behalf of the municipality. If any such disciplinary or criminal proceeding instituted by or on complaint of the municipality shall be dismissed or finally determined in favor of the member or officer, he shall be reimbursed for the expense of his defense.
No statutory language, legislative history or reported opinion explains what shall be deemed compliance with the key words "shall provide said member or officer with necessary means for the defense of such action or proceeding."
Cognate enactments dealing with governmental obligations to provide for the defense of their employees define the obligation in varying terms and give little help in solving the problem before us. Municipal firemen, sued in connection with their employment, are entitled to "counsel and costs incidental to such representation for the defense of such action or proceeding." N.J.S.A. 40A:14-28. Teachers are entitled, under N.J.S.A. 18A:16-6, to have the "costs" of defending any civil action brought against them arising out of or in the course of the performance of their duties, "together with costs of appeal," defrayed by the board of education; in connection with this obligation, boards of education are expressly empowered to maintain insurance to cover these costs. With respect to a favorably terminated criminal action instituted against a teacher, "the board of education shall reimburse him for the cost of defending such proceeding, including reasonable counsel fees and expenses of
the original hearing or trial and all appeals." N.J.S.A. ...