N.Y. Public Officers Law § 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

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,

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 article two 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.

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

directors, officers and employees of the dormitory authority;

(g) 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.

(h) 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.

(i) 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.

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

directors, officers and employees of the thruway authority, and the

directors, officers and employees of the canal corporation. In those

cases where the definition of the term "employee" provided in this

paragraph is applicable, the term "state", as utilized in subdivisions

two, three, and four of this section, shall mean the thruway authority

when the employee is a director, officer, or employee of the thruway

authority, or the canal corporation, when the employee is a director,

officer, or employee of the canal corporation.

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

subdivision three of this section, and subject to the conditions set

forth in paragraph (b) of this subdivision, it shall be the duty of the

state to pay reasonable attorneys' fees and litigation expenses incurred

by or on behalf of an employee in his or her defense of a criminal

proceeding in a state or federal court arising out of any act which

occurred while such employee was acting within the scope of his public

employment or duties upon his acquittal or upon the dismissal of the

criminal charges against him or reasonable attorneys' fees incurred in

connection with an appearance before a grand jury which returns no true

bill against the employee where such appearance was required as a result

of any act which occurred while such employee was acting within the

scope of his public employment or duties unless such appearance occurs

in the normal course of the public employment or duties of such

employee.

(b) Upon the application for reimbursement for reasonable attorneys'

fees or litigation expenses or both made by or on behalf of an employee

as provided in subdivision three of this section, the attorney general

shall determine, based upon his investigation and his review of the

facts and circumstances, whether such reimbursement shall be paid. The

attorney general shall notify the employee in writing of such

determination. Upon determining that such reimbursement should be

provided, the attorney general shall so certify to the comptroller. Upon

such certification, reimbursement shall be made for such fees or

expenses or both 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. Any

dispute with regard to entitlement to reimbursement or the amount of

litigation expenses or the reasonableness of attorneys' fees shall be

resolved by a court of competent jurisdiction upon appropriate motion or

by way of a special proceeding.

3. Reimbursement of reasonable attorneys' fees or litigation expenses

or both by the state as prescribed by this section shall be conditioned

upon (a) 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 a written request for reimbursement of expenses together

with, in the case of a criminal proceeding, the original or a copy of an

accusatory instrument within ten days after he is arraigned upon such

instrument or, in the case of a grand jury appearance, written

documentation of evidence of such appearance and (b) the full

cooperation of the employee in defense of any action or proceeding

against the state based upon the same act, and in the prosecution of any

appeal.

4. 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 provisions of state or

federal statutory or common law.

5. 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 circumstances.