2023 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.