§ 18 — Defense and indemnification of officers and employees of public entities

New York § 18

• Jurisdiction: New York
• Law PBO: Public Officers
• Art. 2: Appointment and Qualification of Public Officers

Text

§ 18. Defense and indemnification of officers and employees of public\nentities. 1. As used in this section, unless the context otherwise\nrequires:\n (a) The term "public entity" shall mean (i) a county, city, town,\nvillage or any other political subdivision or civil division of the\nstate, (ii) a school district, board of cooperative educational\nservices, or any other governmental entity or combination or association\nof governmental entities operating a public school, college, community\ncollege or university, (iii) a public improvement or special district,\n(iv) a public authority, commission, agency or public benefit\ncorporation, or (v) any other separate corporate instrumentality or unit\nof government; but shall not include the state of New York or any other\npublic entity the officers and employees of which are covered by section\nseventeen of this chapter or by defense and indemnification provisions\nof any other state statute taking effect after January first, nineteen\nhundred seventy-nine.\n (b) The term "employee" shall mean any commissioner, member of a\npublic board or commission, trustee, director, officer, employee,\nvolunteer expressly authorized to participate in a publicly sponsored\nvolunteer program, or any other person holding a position by election,\nappointment or employment in the service of a public entity, whether or\nnot compensated, but shall not include the sheriff of any county or an\nindependent contractor. The term "employee" shall include a former\nemployee, his estate or judicially appointed personal representative.\n (c) The term "governing body" shall mean the board or body in which\nthe general legislative, governmental or public powers of the public\nentity are vested and by authority of which the business of the public\nentity is conducted.\n 2. The provisions of this section shall apply to any public entity:\n (a) whose governing body has agreed by the adoption of local law,\nby-law, resolution, rule or regulation (i) to confer the benefits of\nthis section upon its employees, and (ii) to be held liable for the\ncosts incurred under these provisions; or\n (b) where the governing body of a municipality, for whose benefit the\npublic entity has been established, has agreed by the adoption of local\nlaw or resolution (i) to confer the benefits of this section upon the\nemployees of such public entity, and (ii) to be held liable for the\ncosts incurred under these provisions.\n 3. (a) Upon compliance by the employee with the provisions of\nsubdivision five of this section, the public entity shall provide for\nthe defense of the employee in any civil action or proceeding, state or\nfederal, arising out of any alleged act or omission which occurred or\nallegedly occurred while the employee was acting within the scope of his\npublic employment or duties. This duty to provide for a defense shall\nnot arise where such civil action or proceeding is brought by or at the\nbehest of the public entity employing such employee.\n (b) Subject to the conditions set forth in paragraph (a) of this\nsubdivision, the employee shall be entitled to be represented by private\ncounsel of his choice in any civil action or proceeding whenever the\nchief legal officer of the public entity or other counsel designated by\nthe public entity determines that a conflict of interest exists, or\nwhenever a court, upon appropriate motion or otherwise by a special\nproceeding, determines that a conflict of interest exists and that the\nemployee is entitled to be represented by counsel of his choice,\nprovided, however, that the chief legal officer or other counsel\ndesignated by the public entity may require, as a condition to payment\nof the fees and expenses of such representation, that appropriate groups\nof such employees be represented by the same counsel. Reasonable\nattorneys' fees and litigation expenses shall be paid by the public\nentity to such private counsel from time to time during the pendency of\nthe civil action or proceeding with the approval of the governing body\nof the public entity.\n (c) Any dispute with respect to representation of multiple employees\nby a single counsel or the amount of litigation expenses or the\nreasonableness of attorneys' fees shall be resolved by the court upon\nmotion or by way of a special proceeding.\n (d) Where the employee delivers process and a written request for a\ndefense to the public entity under subdivision five of this section, the\npublic entity shall take the necessary steps on behalf of the employee\nto avoid entry of a default judgment pending resolution of any question\npertaining to the obligation to provide for a defense.\n 4. (a) The public entity shall indemnify and save harmless its\nemployees in the amount of any judgment obtained against such employees\nin a state or federal court, or in the amount of any settlement of a\nclaim, provided that the act or omission from which such judgment or\nclaim arose occurred while the employee was acting within the scope of\nhis public employment or duties; provided further that in the case of a\nsettlement the duty to indemnify and save harmless shall be conditioned\nupon the approval of the amount of settlement by the governing body of\nthe public entity.\n (b) Except as otherwise provided by law, the duty to indemnify and\nsave harmless prescribed by this subdivision shall not arise where the\ninjury or damage resulted from intentional wrongdoing or recklessness on\nthe part of the employee.\n (c) Nothing in this subdivision shall authorize a public entity to\nindemnify or save harmless an employee with respect to punitive or\nexemplary damages, fines or penalties, or money recovered from an\nemployee pursuant to section fifty-one of the general municipal law;\nprovided, however, that the public entity shall indemnify and save\nharmless its employees in the amount of any costs, attorneys' fees,\ndamages, fines or penalties which may be imposed by reason of an\nadjudication that an employee, acting within the scope of his public\nemployment or duties, has, without willfulness or intent on his part,\nviolated a prior order, judgment, consent decree or stipulation of\nsettlement entered in any court of this state or of the United States.\n (d) Upon entry of a final judgment against the employee, or upon the\nsettlement of the claim, the employee shall serve a copy of such\njudgment or settlement, personally or by certified or registered mail\nwithin thirty days of the date of entry or settlement, upon the chief\nadministrative officer of the public entity; and if not inconsistent\nwith the provisions of this section, the amount of such judgment or\nsettlement shall be paid by the public entity.\n 5. The duty to defend or indemnify and save harmless prescribed by\nthis section shall be conditioned upon: (i) delivery by the employee to\nthe chief legal officer of the public entity or to its chief\nadministrative officer of a written request to provide for his defense\ntogether with the original or a copy of any summons, complaint, process,\nnotice, demand or pleading within ten days after he is served with such\ndocument, and (ii) the full cooperation of the employee in the defense\nof such action or proceeding and in defense of any action or proceeding\nagainst the public entity based upon the same act or omission, and in\nthe prosecution of any appeal.\n 6. The benefits of this section shall inure only to employees as\ndefined herein and shall not enlarge or diminish the rights of any other\nparty nor shall any provision of this section be construed to affect,\nalter or repeal any provision of the workers' compensation law.\n 7. This section shall not in any way affect the obligation of any\nclaimant to give notice to the public entity under section ten of the\ncourt of claims act, section fifty-e of the general municipal law, or\nany other provision of law.\n 8. Any public entity is hereby authorized and empowered to purchase\ninsurance from any insurance company created by or under the laws of\nthis state, or authorized by law to transact business in this state,\nagainst any liability imposed by the provisions of this section, or to\nact as a self-insurer with respect thereto.\n 9. All payments made under the terms of this section, whether for\ninsurance or otherwise, shall be deemed to be for a public purpose and\nshall be audited and paid in the same manner as other public charges.\n 10. The provisions of this section shall not be construed to impair,\nalter, limit or modify the rights and obligations of any insurer under\nany policy of insurance.\n 11. Except as otherwise specifically provided in this section, the\nprovisions of this section shall not be construed in any way to impair,\nalter, limit, modify, abrogate or restrict any immunity to liability\navailable to or conferred upon any unit, entity, officer or employee of\nany public entity by, in accordance with, or by reason of, any other\nprovision of state or federal statutory or common law.\n 12. Except as otherwise provided in this section, benefits accorded to\nemployees under this section shall be in lieu of and take the place of\ndefense or indemnification protections accorded the same employees by\nanother enactment; unless the governing body of the public entity shall\nhave provided that these benefits shall supplement, and be available in\naddition to, defense or indemnification protection conferred by another\nenactment.\n 13. The provisions of this section shall also be applicable to any\npublic library supported in whole or in part by a public entity whose\ngoverning body has determined by adoption of a local law, ordinance,\nby-law, resolution, rule or regulation to confer the benefits of this\nsection upon the employees of such public library and to be held liable\nfor the costs incurred under these provisions.\n 14. If any provision of this section or the application thereof to any\nperson or circumstance be held unconstitutional or invalid in whole or\nin part by any court, such holding of unconstitutionality or invalidity\nshall in no way affect or impair any other provision of this section or\nthe application of any such provision to any other person or\ncircumstance.\n