NY Pub Off L § 17 (2021)
2021 New York Laws PBO - Public Officers Article 2 - Appointment and Qualification of Public Officers 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.   * (u) For the purposes of this  section,  the  term  "employee"  shall include  the  members  of  the  empire  state stem cell board within the department of health.   * NB Repealed December 31, 2025  (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  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.  (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.