NY Pub Off L § 18 (2021)
2021 New York Laws PBO - Public Officers Article 2 - Appointment and Qualification of Public Officers 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.