§ 19 — Reimbursement of defense costs incurred by or on behalf of state employees

§ 19. Reimbursement of defense costs incurred by or on behalf of state\nemployees. 1. (a) As used in this section, unless the context otherwise\nrequires, the term "employee" shall mean any person holding a position\nby election, appointment or employment in the service of the state,\nwhether or not compensated, or a volunteer expressly authorized to\nparticipate in a state-sponsored volunteer program, but shall not\ninclude an independent contractor. The term employee shall include a\nformer employee, his estate or judicially appointed personal\nrepresentative and persons who assist the education department or the\ndepartment of health as consultants or expert witnesses in the\ninvestigation or prosecution of alleged professional misconduct,\nlicensure matters, restoration proceedings or criminal prosecutions for\nunauthorized practice pursuant to title eight of the education law or\ntitle II-A of article two of the public health law.\n (b) For the purposes of this section, the term "employee" shall\ninclude members, officers and other persons in the employment of the New\nYork state energy research and development authority.\n (c) For the purposes of this section, the term "employee" shall\ninclude members of the state patient qualification review board\nappointed by the commissioner of health pursuant to article\nthirty-three-A of the public health law.\n (d) For the purposes of this section, the term "employee" shall\ninclude directors, officers and employees of the facilities development\ncorporation.\n (e) For the purposes of this section, the term "employee" shall\ninclude directors, officers and employees of the environmental\nfacilities corporation.\n (f) For purposes of this section, the term "employee" shall include\ndirectors, officers and employees of the dormitory authority;\n (g) For the purposes of this section only, the term "employee" shall\ninclude any member, director, officer or employee of a soil and water\nconservation district created pursuant to section five of the soil and\nwater conservation districts law who is working on a project which\nreceives funding from the state and has received approval by the state\nsoil and water conservation committee.\n (h) For the purposes of this section and consistent with the\nprovisions of section 13 of a chapter of the laws of 1997, amending the\npublic authorities law, the public health law, the public officers law,\nchapter 41 of the laws of 1997 relating to providing a retirement\nincentive for certain public employees, and the civil service law,\nrelating to the creation of the Roswell Park Cancer Institute\ncorporation and providing for the rights, powers, duties and\njurisdiction of such corporation, the term "employee" shall include\ndirectors, officers and employees of the Roswell Park Cancer Institute\ncorporation.\n (i) For the purposes of this section, the term "employee" shall\ninclude directors, officers, and employees of the Governor Nelson A.\nRockefeller empire state plaza performing arts center corporation.\n (j) For purposes of this section, the term "employee" shall include\ndirectors, officers and employees of the thruway authority, and the\ndirectors, officers and employees of the canal corporation. In those\ncases where the definition of the term "employee" provided in this\nparagraph is applicable, the term "state", as utilized in subdivisions\ntwo, three, and four of this section, shall mean the thruway authority\nwhen the employee is a director, officer, or employee of the thruway\nauthority, or the canal corporation, when the employee is a director,\nofficer, or employee of the canal corporation.\n 2. (a) Upon compliance by the employee with the provisions of\nsubdivision three of this section, and subject to the conditions set\nforth in paragraph (b) of this subdivision, it shall be the duty of the\nstate to pay reasonable attorneys' fees and litigation expenses incurred\nby or on behalf of an employee in his or her defense of a criminal\nproceeding in a state or federal court arising out of any act which\noccurred while such employee was acting within the scope of his public\nemployment or duties upon his acquittal or upon the dismissal of the\ncriminal charges against him or reasonable attorneys' fees incurred in\nconnection with an appearance before a grand jury which returns no true\nbill against the employee where such appearance was required as a result\nof any act which occurred while such employee was acting within the\nscope of his public employment or duties unless such appearance occurs\nin the normal course of the public employment or duties of such\nemployee.\n (b) Upon the application for reimbursement for reasonable attorneys'\nfees or litigation expenses or both made by or on behalf of an employee\nas provided in subdivision three of this section, the attorney general\nshall determine, based upon his investigation and his review of the\nfacts and circumstances, whether such reimbursement shall be paid. The\nattorney general shall notify the employee in writing of such\ndetermination. Upon determining that such reimbursement should be\nprovided, the attorney general shall so certify to the comptroller. Upon\nsuch certification, reimbursement shall be made for such fees or\nexpenses or both upon the audit and warrant of the comptroller. On or\nbefore January fifteenth the comptroller, in consultation with the\ndepartment of law and other agencies as may be appropriate, shall submit\nto the governor and the legislature an annual accounting of judgments,\nsettlements, fees, and litigation expenses paid pursuant to this section\nduring the preceding and current fiscal years. Such accounting shall\ninclude, but not be limited to the number, type and amount of claims so\npaid, as well as an estimate of claims to be paid during the remainder\nof the current fiscal year and during the following fiscal year. Any\ndispute with regard to entitlement to reimbursement or the amount of\nlitigation expenses or the reasonableness of attorneys' fees shall be\nresolved by a court of competent jurisdiction upon appropriate motion or\nby way of a special proceeding.\n 3. Reimbursement of reasonable attorneys' fees or litigation expenses\nor both by the state as prescribed by this section shall be conditioned\nupon (a) delivery to the attorney general or an assistant attorney\ngeneral at an office of the department of law in the state by the\nemployee of a written request for reimbursement of expenses together\nwith, in the case of a criminal proceeding, the original or a copy of an\naccusatory instrument within ten days after he is arraigned upon such\ninstrument or, in the case of a grand jury appearance, written\ndocumentation of evidence of such appearance and (b) the full\ncooperation of the employee in defense of any action or proceeding\nagainst the state based upon the same act, and in the prosecution of any\nappeal.\n 4. 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 available to or\nconferred upon any unit, entity, officer or employee of the state or any\nother level of government, or any right to defense and/or\nindemnification provided for any governmental officer or employee by, in\naccordance with, or by reason of, any other provisions of state or\nfederal statutory or common law.\n 5. 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 of competent jurisdiction, such holding of\nunconstitutionality or invalidity shall in no way affect or impair any\nother provision of this section or the application of any such provision\nto any other person or circumstances.\n