N.Y. Public Officers Law § 17: Defense and indemnification of state officers and employees

§ 17. Defense and indemnification of state officers and employees. 1.

(a) As used in this section, unless the context otherwise requires the

term "employee" shall mean any person holding a position by election,

appointment or employment in the service of the state, including

clinical practice pursuant to subdivision fourteen of section two

hundred six of the public health law, whether or not compensated, or a

volunteer expressly authorized to participate in a state-sponsored

volunteer program, but shall not include an independent contractor. The

term employee shall include a former employee, his estate or judicially

appointed personal representative and persons who assist the education

department or the department of health as consultants or expert

witnesses in the investigation or prosecution of alleged professional

misconduct, licensure matters, restoration proceedings, or criminal

prosecutions for unauthorized practice pursuant to title eight of the

education law or title II-A of the public health law.

(b) For the purposes of this section, the term "employee" shall

include members, officers and other persons in the employment of the New

York state energy research and development authority, members of the

board of directors, officers and other persons in the employment of the

New York state science and technology foundation, and members of the

board of directors, officers and other persons in the employment of the

New York state olympic accommodations control corporation or serving on

its board of directors on or before June thirtieth, nineteen hundred

eighty.

(c) For the purposes of this section, the term "employee" shall

include members of the state patient qualification review board

appointed by the commissioner of health pursuant to article

thirty-three-A of the public health law.

(d) For the purposes of this section, the term "employee" shall

include directors, officers and employees of the facilities development

corporation.

(e) For the purposes of this section, the term "employee" shall

include directors, officers and employees of the environmental

facilities corporation.

(f) For the purposes of this section, the term "employee" shall

include ombudsmen designated under section five hundred forty-four and

section five hundred forty-five of the executive law, and shall include

such ombudsmen without regard to whether they are volunteers or paid

staff of the office for the aging or of designated substate ombudsman

programs under the direction of the office.

(g) For the purposes of this section, the term "employee" shall

include the members of the board, officers and employees of the greenway

heritage conservancy for the Hudson river valley or the greenway

council.

(h) For the purposes of this section, the term "employee" shall

include members of the board, officers and employees of the New York

local government assistance corporation.

(i) For purposes of this section, the term "employee" shall include

the officers and employees of the Central Pine Barrens joint planning

and policy commission.

(j) For purposes of this section, the term "employee" shall include

directors, officers and employees of the dormitory authority.

(k) For the purposes of this section only, the term "employee" shall

include any member, director, officer or employee of a soil and water

conservation district created pursuant to section five of the soil and

water conservation districts law who is working on a project which

receives funding from the state and has received approval by the state

soil and water conservation committee or who is carrying out the powers

and duties pursuant to article two of the soil and water conservation

districts law by working with any agency of the state as defined by

subdivision five of section three of the soil and water conservation

districts law.

(l) For the purposes of this section and consistent with the

provisions of section 13 of a chapter of the laws of 1997, amending the

public authorities law, the public health law, the public officers law,

chapter 41 of the laws of 1997 relating to providing a retirement

incentive for certain public employees, and the civil service law,

relating to the creation of the Roswell Park Cancer Institute

corporation and providing for the rights, powers, duties and

jurisdiction of such corporation, the term "employee" shall include

directors, officers and employees of the Roswell Park Cancer Institute

corporation.

(m) For the purposes of this section, the term "employee" shall

include the members of the spinal cord injury research board within the

department of health.

(n) For the purposes of this section, the term "employee" shall

include directors, officers, and employees of the Governor Nelson A.

Rockefeller empire state plaza performing arts center corporation.

(o) For the purposes of this section, the term "employee" shall

include the directors, officers and employees of the state of New York

mortgage agency.

(q) For the purposes of this section, the term "employee" shall

include the members, officers and employees of the tobacco settlement

financing corporation.

(r) For the purposes of this section, the term "employee" shall

include the directors, officers, and employees of the state of New York

municipal bond bank agency and the directors, officers, employees,

trustees and other managers (however denominated), of any tax lien

entity (as defined in subdivision sixteen of section twenty-four hundred

thirty-two of the public authorities law) of the state of New York

municipal bond bank agency.

(s) For the purposes of this section, the term "employee" shall

include the members of the board, officers and employees of the Niagara

river greenway commission.

(t) For the purposes of this section, the term "employee" shall

include the members of the board, officers and employees of the

dormitory authority for purposes of section sixteen hundred eighty-l of

the public authorities law.

(v) For the purposes of this section, the term "employee" shall

include the members of the board, and officers and employees of the New

York city off-track betting corporation.

(w) For purposes of this section, the term "employee" shall include

(i) a person certified by the office of court administration and paid by

the city of New York to serve as a guardian ad litem in an action or

proceeding pending in the housing part of the civil court of the city of

New York; or (ii) a person certified by the office of court

administration and paid by the county of Westchester to serve as a

guardian ad litem in a non-payment, holdover, or other landlord-tenant

action or proceeding pending in a village, town, city, or other court in

the county of Westchester.

(x) For the purposes of this section, the term "employee" shall

include the members of the board, officers and employees of the

dormitory authority for purposes of section sixteen hundred eighty-q of

the public authorities law.

(y) For purposes of this section, the term "employee" shall include

members of the board, officers and employees of the New York state

thruway authority or its subsidiaries.

(z) For purposes of this section, the term "employee" shall include

members of the governing board, officers and employees of the New York

state canal corporation.

2. (a) Upon compliance by the employee with the provisions of

subdivision four of this section, the state shall provide for the

defense of the employee in any civil action or proceeding in any state

or federal court arising out of any alleged act or omission which

occurred or is alleged in the complaint to have occurred while the

employee was acting within the scope of his public employment or duties;

or which is brought to enforce a provision of section nineteen hundred

eighty-one or nineteen hundred eighty-three of title forty-two of the

United States code and the act or omission underlying the action

occurred or is alleged in the complaint to have occurred while the

employee was acting within the scope of his public employment or duties.

This duty to provide for a defense shall not arise where such civil

action or proceeding is brought by or on behalf of the state.

(b) Subject to the conditions set forth in paragraph (a) of this

subdivision, the employee shall be entitled to be represented by the

attorney general, provided, however, that the employee shall be entitled

to representation by private counsel of his choice in any civil judicial

proceeding whenever the attorney general determines based upon his

investigation and review of the facts and circumstances of the case that

representation by the attorney general would be inappropriate, or

whenever a court of competent jurisdiction, upon appropriate motion or

by a special proceeding, determines that a conflict of interest exists

and that the employee is entitled to be represented by private counsel

of his choice. The attorney general shall notify the employee in writing

of such determination that the employee is entitled to be represented by

private counsel. The attorney general may require, as a condition to

payment of the fees and expenses of such representation, that

appropriate groups of such employees be represented by the same counsel.

If the employee or group of employees is entitled to representation by

private counsel under the provisions of this section, the attorney

general shall so certify to the comptroller. Reasonable attorneys' fees

and litigation expenses shall be paid by the state to such private

counsel from time to time during the pendency of the civil action or

proceeding subject to certification that the employee is entitled to

representation under the terms and conditions of this section by the

head of the department, commission, division, office or agency in which

such employee is employed and upon the audit and warrant of the

comptroller. Any dispute with respect to representation of multiple

employees by a single counsel or the amount of litigation expenses or

the reasonableness of attorneys' fees shall be resolved by the court

upon motion or by way of a special proceeding.

(c) Where the employee delivers process and a request for a defense to

the attorney general as required by subdivision four of this section,

the attorney general shall take the necessary steps including the

retention of private counsel under the terms and conditions provided in

paragraph (b) of subdivision two of this section on behalf of the

employee to avoid entry of a default judgment pending resolution of any

question pertaining to the obligation to provide for a defense.

3. (a) The state shall indemnify and save harmless its employees in

the amount of any judgment obtained against such employees in any state

or federal court, or in the amount of any settlement of a claim, or

shall pay such judgment or settlement; provided, that the act or

omission from which such judgment or settlement arose occurred while the

employee was acting within the scope of his public employment or duties;

the duty to indemnify and save harmless or pay prescribed by this

subdivision shall not arise where the injury or damage resulted from

intentional wrongdoing on the part of the employee.

(b) An employee represented by the attorney general or by private

counsel pursuant to this section shall cause to be submitted to the head

of the department, commission, division, office or agency in which he is

employed any proposed settlement which may be subject to indemnification

or payment by the state and if not inconsistent with the provisions of

this section such head of the department, commission, division, office

or agency in which he is employed shall certify such settlement, and

submit such settlement and certification to the attorney general. The

attorney general shall review such proposed settlement as to form and

amount, and shall give his approval if in his judgment the settlement is

in the best interest of the state. Nothing in this subdivision shall be

construed to authorize the state to indemnify and save harmless or pay

an employee with respect to a settlement not so reviewed and approved by

the attorney general.

(c) Nothing in this subdivision shall authorize the state to indemnify

or save harmless an employee with respect to fines or penalties, or

money recovered from an employee pursuant to article seven-a of the

state finance law; provided, however, that the state shall indemnify and

save harmless its employees in the amount of any costs, attorneys' fees,

damages, fines or penalties which may be imposed by reason of an

adjudication that an employee, acting within the scope of his public

employment or duties, has, without willfulness or intent on his part,

violated a prior order, judgment, consent decree or stipulation of

settlement entered in any court of this state or of the United States.

The attorney general shall promulgate such rules and regulations as are

necessary to effectuate the purposes of this subdivision.

(d) Upon entry of a final judgment against the employee, or upon the

settlement of the claim, the employee shall cause to be served a copy of

such judgment or settlement, personally or by certified or registered

mail within thirty days of the date of entry or settlement, upon the

head of the department, commission, division, office or agency in which

he is employed; and if not inconsistent with the provisions of this

section, such judgment or settlement shall be certified for payment by

such head of the department, commission, division, office or agency. If

the attorney general concurs in such certification, the judgment or

settlement shall be paid upon the audit and warrant of the comptroller.

On or before January fifteenth the comptroller, in consultation with the

department of law and other agencies as may be appropriate, shall submit

to the governor and the legislature an annual accounting of judgments,

settlements, fees, and litigation expenses paid pursuant to this section

during the preceding and current fiscal years. Such accounting shall

include, but not be limited to the number, type and amount of claims so

paid, as well as an estimate of claims to be paid during the remainder

of the current fiscal year and during the following fiscal year.

4. The duty to defend or indemnify and save harmless prescribed by

this section shall be conditioned upon (i) delivery to the attorney

general or an assistant attorney general at an office of the department

of law in the state by the employee of the original or a copy of any

summons, complaint, process, notice, demand or pleading within five days

after he is served with such document, and (ii) the full cooperation of

the employee in the defense of such action or proceeding and in defense

of any action or proceeding against the state based upon the same act or

omission, and in the prosecution of any appeal. Such delivery shall be

deemed a request by the employee that the state provide for his defense

pursuant to this section.

5. The benefits of this section shall inure only to employees as

defined herein and shall not enlarge or diminish the rights of any other

party nor shall any provision of this section be construed to affect,

alter or repeal any provision of the workers' compensation law.

6. This section shall not in any way affect the obligation of any

claimant to give notice to the state under section ten of the court of

claims act or any other provision of law.

7. The provisions of this section shall not be construed to impair,

alter, limit or modify the rights and obligations of any insurer under

any policy of insurance.

8. The provisions of this section shall apply to all actions and

proceedings pending upon the effective date thereof or thereafter

instituted.

9. Except as otherwise specifically provided in this section, the

provisions of this section shall not be construed in any way to impair,

alter, limit, modify, abrogate or restrict any immunity available to or

conferred upon any unit, entity, officer or employee of the state or any

other level of government, or any right to defense and/or

indemnification provided for any governmental officer or employee by, in

accordance with, or by reason of, any other provision of state or

federal statutory or common law.

10. If any provision of this section or the application thereof to any

person or circumstance be held unconstitutional or invalid in whole or

in part by any court of competent jurisdiction, such holding of

unconstitutionality or invalidity shall in no way affect or impair any

other provision of this section or the application of any such provision

to any other person or circumstance.

11. The provisions of this section shall not apply to physicians who

are subject to the provisions of the plan for the management of clinical

practice income as set forth in the policies of the board of trustees,

title 8, New York codes, rules and regulations, regarding any civil

action or proceeding alleging some professional malpractice in any state

or federal court arising out of the physician's involvement in clinical

practice as defined in that plan, provided however, that the provisions

of this section shall apply when a claim or proceeding arises while the

physician was acting on behalf of the state within the scope of such

physician's public employment or duties.