N.Y. Public Officers Law § 18: Defense and indemnification of officers and employees of public entities

§ 18. Defense and indemnification of officers and employees of public

entities. 1. As used in this section, unless the context otherwise

requires:

(a) The term "public entity" shall mean (i) a county, city, town,

village or any other political subdivision or civil division of the

state, (ii) a school district, board of cooperative educational

services, or any other governmental entity or combination or association

of governmental entities operating a public school, college, community

college or university, (iii) a public improvement or special district,

(iv) a public authority, commission, agency or public benefit

corporation, or (v) any other separate corporate instrumentality or unit

of government; but shall not include the state of New York or any other

public entity the officers and employees of which are covered by section

seventeen of this chapter or by defense and indemnification provisions

of any other state statute taking effect after January first, nineteen

hundred seventy-nine.

(b) The term "employee" shall mean any commissioner, member of a

public board or commission, trustee, director, officer, employee,

volunteer expressly authorized to participate in a publicly sponsored

volunteer program, or any other person holding a position by election,

appointment or employment in the service of a public entity, whether or

not compensated, but shall not include the sheriff of any county or an

independent contractor. The term "employee" shall include a former

employee, his estate or judicially appointed personal representative.

(c) The term "governing body" shall mean the board or body in which

the general legislative, governmental or public powers of the public

entity are vested and by authority of which the business of the public

entity is conducted.

2. The provisions of this section shall apply to any public entity:

(a) whose governing body has agreed by the adoption of local law,

by-law, resolution, rule or regulation (i) to confer the benefits of

this section upon its employees, and (ii) to be held liable for the

costs incurred under these provisions; or

(b) where the governing body of a municipality, for whose benefit the

public entity has been established, has agreed by the adoption of local

law or resolution (i) to confer the benefits of this section upon the

employees of such public entity, and (ii) to be held liable for the

costs incurred under these provisions.

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

subdivision five of this section, the public entity shall provide for

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

federal, arising out of any alleged act or omission which occurred or

allegedly 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 at the

behest of the public entity employing such employee.

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

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

counsel of his choice in any civil action or proceeding whenever the

chief legal officer of the public entity or other counsel designated by

the public entity determines that a conflict of interest exists, or

whenever a court, upon appropriate motion or otherwise by a special

proceeding, determines that a conflict of interest exists and that the

employee is entitled to be represented by counsel of his choice,

provided, however, that the chief legal officer or other counsel

designated by the public entity 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. Reasonable

attorneys' fees and litigation expenses shall be paid by the public

entity to such private counsel from time to time during the pendency of

the civil action or proceeding with the approval of the governing body

of the public entity.

(c) 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.

(d) Where the employee delivers process and a written request for a

defense to the public entity under subdivision five of this section, the

public entity shall take the necessary steps 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.

4. (a) The public entity shall indemnify and save harmless its

employees in the amount of any judgment obtained against such employees

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

claim, provided that the act or omission from which such judgment or

claim arose occurred while the employee was acting within the scope of

his public employment or duties; provided further that in the case of a

settlement the duty to indemnify and save harmless shall be conditioned

upon the approval of the amount of settlement by the governing body of

the public entity.

(b) Except as otherwise provided by law, the duty to indemnify and

save harmless prescribed by this subdivision shall not arise where the

injury or damage resulted from intentional wrongdoing or recklessness on

the part of the employee.

(c) Nothing in this subdivision shall authorize a public entity to

indemnify or save harmless an employee with respect to punitive or

exemplary damages, fines or penalties, or money recovered from an

employee pursuant to section fifty-one of the general municipal law;

provided, however, that the public entity 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.

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

settlement of the claim, the employee shall serve 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 chief

administrative officer of the public entity; and if not inconsistent

with the provisions of this section, the amount of such judgment or

settlement shall be paid by the public entity.

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

this section shall be conditioned upon: (i) delivery by the employee to

the chief legal officer of the public entity or to its chief

administrative officer of a written request to provide for his defense

together with the original or a copy of any summons, complaint, process,

notice, demand or pleading within ten 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 public entity based upon the same act or omission, and in

the prosecution of any appeal.

6. 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.

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

claimant to give notice to the public entity under section ten of the

court of claims act, section fifty-e of the general municipal law, or

any other provision of law.

8. Any public entity is hereby authorized and empowered to purchase

insurance from any insurance company created by or under the laws of

this state, or authorized by law to transact business in this state,

against any liability imposed by the provisions of this section, or to

act as a self-insurer with respect thereto.

9. All payments made under the terms of this section, whether for

insurance or otherwise, shall be deemed to be for a public purpose and

shall be audited and paid in the same manner as other public charges.

10. 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.

11. 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 to liability

available to or conferred upon any unit, entity, officer or employee of

any public entity by, in accordance with, or by reason of, any other

provision of state or federal statutory or common law.

12. Except as otherwise provided in this section, benefits accorded to

employees under this section shall be in lieu of and take the place of

defense or indemnification protections accorded the same employees by

another enactment; unless the governing body of the public entity shall

have provided that these benefits shall supplement, and be available in

addition to, defense or indemnification protection conferred by another

enactment.

13. The provisions of this section shall also be applicable to any

public library supported in whole or in part by a public entity whose

governing body has determined by adoption of a local law, ordinance,

by-law, resolution, rule or regulation to confer the benefits of this

section upon the employees of such public library and to be held liable

for the costs incurred under these provisions.

14. 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, 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.