2023 New York Laws › PBO - Public Officers › Article 2 - Appointment and Qualification of Public Officers › 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.