State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: April 9, 2015 519090 

________________________________

In the Matter of PAUL W.

MOSSMAN, as Commissioner of

Social Services of Columbia

County,

Respondent,

v

COUNTY OF COLUMBIA,

Appellant.

(Proceeding No. 1.)

________________________________ MEMORANDUM AND ORDER

In the Matter of PAUL W.

MOSSMAN, as Commissioner of

Social Services of Columbia

County,

Respondent,

v

COUNTY OF COLUMBIA,

Appellant.

(Proceeding No. 2.)

________________________________

Calendar Date: February 20, 2015

Before: Lahtinen, J.P., Garry, Rose and Devine, JJ.

__________

David E. Woodin, LLC, Catskill (David W. Woodin of

counsel), for appellant.

William J. Better, PC, Kinderhook (N. Daniel Reeder of

counsel), for respondent.

__________
-2- 519090 

Devine, J.

Appeals (1) from a judgment of the Supreme Court (Zwack,

J.), entered December 27, 2013 in Columbia County, which granted

petitioner's application, in combined proceeding No. 1 pursuant

to CPLR article 78 and action for declaratory judgment, to, among

other things, annul respondent's determination that petitioner

was not entitled to a legal defense pursuant to Public Officers

Law § 18 in connection with a certain grand jury proceeding, and

(2) from a judgment of said court, entered April 29, 2014 in

Columbia County, which granted petitioner's application, in

combined proceeding No. 2 pursuant to CPLR article 78 and action

for declaratory judgment, to, among other things, direct

respondent to provide such a legal defense in connection with a

subsequent grand jury proceeding.

In March 2013, the Columbia County District Attorney issued

a subpoena demanding that petitioner appear before a grand jury

with various documents related to the official actions of

Columbia County Department of Social Services employees. 

Petitioner thereafter sought to retain outside counsel and

requested that respondent indemnify him pursuant to Public

Officers Law § 18 and Columbia County Code § 36-1. Respondent

declined to do so, asserting that those provisions did not apply

to "potential criminal matters." Petitioner commenced a combined

CPLR article 78 proceeding and declaratory judgment action

(proceeding No. 1) to challenge the determination and obtain a

declaration that respondent was obliged to indemnify him for his

legal expenses. Supreme Court granted that relief in a December

2013 judgment.

The Columbia County District Attorney served a similar

subpoena in March 2014 and, after respondent again refused to

indemnify petitioner for his legal expenses, he commenced a

second combined CPLR article 78 proceeding and declaratory

judgment action (proceeding No. 2). Supreme Court, relying upon

its rationale in proceeding No. 1, issued a judgment in April

2014 that granted the petition. Respondent now appeals from both

the December 2013 and April 2014 judgments.
-3- 519090 

As respondent has adopted Public Officers Law § 18, it is

obliged to "provide for the defense of [an] 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 [or her]

public employment or duties" (Public Officers Law § 18 [3] [a]). 

Moreover, because a conflict of interest prevented the Columbia

County Attorney from representing petitioner, petitioner was

entitled to representation "by private counsel of his choice"

(Public Officers Law § 18 [3] [b]; see County Law § 501 [2]). 

Petitioner satisfied the notice requirements of Public Officers

Law § 18 and is an employee of respondent, and the subpoenas

clearly stem from actions undertaken in the course of his public

duties. Respondent contends, however, that the grand jury

proceeding did not constitute a "civil action or proceeding" for

the purposes of Public Officers Law § 18.

We disagree and affirm. Respondent failed to demonstrate

what the object of the grand jury proceeding was, readily

admitting that the District Attorney had not made his "intentions

[known] in relation to the potential for criminal charges." 

While grand juries may indict a person for a criminal offense

(see CPL 1.20 [18]; 190.60 [1]), they are also empowered "to make

presentments as to noncriminal misconduct or neglect by public

officers and employees" (Matter of Report of 1966 Oct. Monroe

County Grand Jury, 27 AD2d 980, 980 [1967]; see CPL 190.05,

190.55 [1]; 190.60 [5]; 190.85 [1]; Matter of Grand Jury of

County of Erie, Second Report, Nov., 26 NY2d 200, 203-204

[1970]).1 Thus, because there is no indication that criminal

1 Respondent points out that the subpoenas at issue seek

information regarding "all of [petitioner's] employees and

subordinates," and claims that those individuals could not be the

target of a grand jury report such as to entitle them to a

defense under Public Officers Law § 18. Contrary to respondent's

contention, the statutory power to report on the noncriminal

misconduct of any public servant bears no connection to the

separate constitutional right of a grand jury to investigate and

indict public officers (compare CPL 190.85 [1], Penal Law § 10.00

[15], and Matter of Grand Jury of County of Erie, Second Report,
-4- 519090 

charges are actually being contemplated, Supreme Court properly

"reject[ed] respondent's claim that because the [g]rand [j]ury

proceeding[s] could have resulted in criminal charges against

petitioner, the proceeding[s] [were] not civil in nature" (Matter

of Hunt v Hamilton County, 235 AD2d 758, 760 [1997]). "Any other

holding would defeat the clear intent of the statute, which

insulates public employees from litigation expenses arising out

of their employment" (Matter of Hogue v Zoning Bd. of Appeals of

Vil. of Canajoharie, 239 AD2d 807, 808 [1997] [citation

omitted]).

Respondent's remaining contentions, to the extent they are

properly before us, have been examined and found to be lacking in

merit.

Lahtinen, J.P., Garry and Rose, JJ., concur.

ORDERED that the judgments are affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court

Nov., 26 NY2d at 203-204, with NY Const, art I, § 6, and Matter

of Wood v Hughes, 9 NY2d 144, 153-154 [1961]).