Recent Developments in the Indemnification of Public Employees

Home , Duty to defend

RECENT DEVELOPMENTS IN THE INDEMNIFICATION OF PUBLIC EMPLOYEES

Presented by:

John M. Flannery . Peter A. Meisels . Robert A. Spolzino

I. PUBLIC OFFICER'S LAW§ 18:

a. Core Provisions:

I. Applies to any public entity whose governing body agrees to confer these

benefits and to be liable for its costs

IL The public body will defend and indemnify its employees for any act or

omission which occurred or allegedly occurred while the employee was

working within scope of employment or duties

111. No indemnification under statute for punitive damages

1v. No indemnification where injury or damage results from intentional

wrongdoing or recklessness.

v. Three options:

1. The public entity may adopt § 18 in its entirety.

2. The public entity may adopt a local law adopting the provisions of

§ 18 with modifications. For example, some public entities have

adopted local laws with provisions similar to § 18, but also provide

for defense and indemnification in § 1983 civil rights actions.

b. When adopted, the benefits of § 18 are in lieu of and take the place of other

enactments unless the governing body provides that these benefits supplement

other protections.

c. The entity's attorney makes the determination of whether an employee was acting

within the scope of employment or duties, and this determination may only be set

6304860v. I aside if it is determined to be arbitrary and capnc1ous. Some examples of

employees acting outside the scope of their employment or duties:

i. A director of a county's real estate division was acting outside the scope

of his employment when he ran a private title insurance company that was

the underlying basis for the cause of the action. Grecco v. Cimino, 13

A.D.3d 371, 372 (2d Dep't, 2004).

ii. Town Councilwoman brought a proceeding against the Board of Zoning

Appeals and successfully challenged the grant of a variance to a real estate

developer.

When an action was brought against her for malicious prosecution and

abuse of process, the Town Attorney declined to defend her. The acts of a

public officer are performed within the scope of official duties if the acts

are done in relation to matters committed by law to the officer's control or

supervision.

The test for determining an official duty is whether the officer is acting

within the scope of what he or she is employed to do. As a general rule,

public officers have only such powers as are expressly granted by statute

,sovereign authority or those which are necessarily to be implied from

those granted. Blumberg v. Town ofNorth Hempstead, 114 Misc.2d 8, 13-

14 (Nassau County, 1982).

m. In a defamation action against a Mayor for statements made during an

election debate, where there was no allegation that he did so in the scope

of his public employment and where there was an absence of evidence

6304860v. l suggesting plaintiff was acting within the scope of his employment since

all questions were asked of plaintiff were as a candidate and not as the

Mayor, the Mayor was not entitled to defense and indemnification.

Glacken v. Freeport 2014 WL 1836143, 2014 U.S. Dist. LEXIS 63871,

* 12 (E.D.N.Y. 2014).

d. Employee entitled to conflict counsel of employees' choosing when chief legal

officer or court determines that a conflict exists and the employee is entitled to be

represented by counsel of his choice.

I. Some examples of what creates a conflict requiring independent counsel:

1. Where the attorney representing the co-defendant Town failed to

advise the co-defendant police officers sued in their individual

capacities and for punitive damages under state and federal law on

numerous issues:

(1) that the officers could be found individually liable and

could be personally liable for punitive damages

(2) that there was a potential conflict whereby the municipality

could defend itself by demonstrating that the officers were

not acting within the scope of their official duties

(3) that the officers could shift liability to the Town by

demonstrating that they were acting pursuant to official

policy and entitled to qualified immunity

( 4) the attorney representing the Town had not been

cooperative or providing the defendant police officers with

6304860v.1 copies of pleadings and motion papers germane to the

conflict inquiry

England v. Town of Clarkstown, et al. 166 Misc. 2d 834,

836-37 (Rockland County, 1995) (citing Owen v. City of

Independence, 445 U.S. 622 (1980); Dunton v. County of

Suffolk, 729 F.2d 903 (2d Cir. 1984); Death v. Salem, 111

A.D.2d 778 (2d Dep't, 1985))

2. Where the County Attorney's office representing the Board of

Elections submitted an answer for the Board made up of both

election commissioners who disagreed on whether two emergency

ballots should be opened and counted, raising no objection to legal

proceedings to have the ballots counted, the commissioners were

entitled to separate counsel. Williams v. Rensselaer County Board

of Elections, 118 A.D. 2d 966, 967-68 (3d Dep't 1986).

3. A conflict arises as soon as a municipal defendant raises as a

defense the allegation that individual defendants were acting

outside the scope of their employment or were acting in a way not

in accordance with custom or policy of the municipal defendant.

Merrill v. County of Browne, 244 A.D.2d 590, 591-92 (3d Dep't

1997).

IL Some examples of where there is no conflict:

1. When a complaint against the School Board and individual

employees filed with the State Division of Human Rights did not

6304860v.I allege that school officials acted outside the scope of their

employment, and the school district's answer did not claim that the

officials acted outside the scope of their employment, there was no

conflict under either Education Law § 3811 or Public Officers Law

§ 18 requiring independent counsel for the employees. Scimeca v.

Brentwood Union Free School District, 140 A.D.3d 1174, 1176

(2d Dep't, 2016).

2. In an action against a Town, the ZBA and the Code Enforcement

Officer, where land owners were unable to secure a building

permit there was no conflict when a motion to dismiss the action

treated all defendants equally and fairly, despite the potential for a

conflict in the future. Kreamer v. Town of Oxford, 96 AD.3d 1130,

1131-32 (3d Dep't, 2012).

m. Courts are wary of potential conflicts, applying the reasoning of Dunton

on a case by case basis.

1. Even though from pleadings it appears as if there is no conflict,

based upon ongoing discovery and the mutually exclusive nature

of the assertions by White Plains and a an individual co-defendant,

a former employee, counsel was disqualified from representing all

defendants. Jackson v. City of White Plains et al., 05-cv-491,

Karas, J. Oct. 14, 2010.

1v. If a conflict arises, and either the municipal attorney or the court

determines that independent counsel is required, the individual defendant

6304860v. l is entitled to counsel of her or his choice, except that costs and fees must

be reasonable. A single attorney may represent an entire class of

defendants if there are no conflicts within that class. Thereafter,

traditional professional responsibility analysis vis a vis conflicts is applied.

Scimeca v. Brentwood, 140 A.D.3d 1174, 1175 (2d Dep't, 2016); N.Y.

Pub. Off. Law§ 18(3) (McKinney).

e. The duty to defend and indemnify is conditioned upon full cooperation by the

employee in the defense of the action and any action against the public entity

based upon the same act or omission and in the prosecution of any appeal.

I. Cooperation of Employees:

1. The most basic requirement for cooperation is delivering the

summons and complaint to the municipal attorney. Failure to do

so and failure to prove that this has been done relieves the

municipality of its obligation to defend and indemnify. Hassan v.

Woodhull Hospital and Medical Center, 282 A.D.2d 709, 710 (2d

Dep't, 2001) (this case examines the issue in a 50-k context, but

the principles are the same).

2. Failure to cooperate can be shown by:

( 1) refusal to meet with and provide pertinent information to

the Corporation Counsel during the City's defense of an

action;

(2) invocation of the Fifth Amendment at a deposition;

(3) not appearing at trial;

6304860v. I ( 4) not responding to requests for documents, interrogatories

and admissions.

Banks v. Yokemick, 214 F. Supp. 2d 401, 404 (S.D.N.Y.

2002)

3. A denial or withdrawal of defense and indemnification can be

reversed only if the court determines it was arbitrary and

capricious. Barkan v. Roslyn Union Free Sch. Dist., 67 A.D.3d 61,

68 (2d Dep't 2009) (citing Pell v. Bd. of Ed. of Union Free Sch.

Dist. No. I of Towns of Scarsdale & Mamaroneck, Westchester

Cty., 34 N.Y.2d 222 (1974)).

4. A public entity may agree to the inclusion of a non- disparagement

clause in a settlement agreement and the failure of public

employees to sign that agreement constitutes a lack of cooperation.

Lancaster v. F'reeport, 22 N.Y.3d 30, 37-38 (2013).

II. GENERAL MUNICIPAL LAW §50-j

a. Every city, county, town, village, authority or agency in the state of New York

must indemnify police officers for negligence or tortuous acts that occur while

performing his or her duties and while within the scope of his or her employment.

b. Unlike POL § 18 (which is optional and a municipality must affirmatively adopt

via local law), GML 50-j is a statutory obligation imposed on all municipalities.

c. The statute does not require indemnification for punitive damages, but it does

authorize municipalities to pass local laws providing for that benefit.

6304860v. I d. GML § 50-j only applies to Police Officers, not Peace Officers. Court Security

Officers, for example, are not covered by this statute. The statute specifies police

officers, and police officers and peace officers are defined separately in the

Criminal Procedure Law. Marquez v. Town of Dewitt, No. 5:11-CV-750, 2015

WL 401023, 2015 U.S. Dist. LEXIS 9523, *10 (N.D.N.Y. Jan. 28, 2015)

e. Scope of Employment:

I. Whether a police officer is acting within the scope of employment is a

question of fact, rather than law. Schenectady Police Benevolent Ass 'n. v.

City Of Schenectady, 299 A.D.2d 717, 718 (3d Dep't 2002). Facts and

evidence that show that the officer became involved in a personal conflict

which was the basis for the claim, will lead to a finding that the officer

was acting outside the scope of employment, even if on duty. Id.

IL On duty

1. Actions taken while on duty and performing the ordinary functions

of an officer's job will be found to be within the scope of

employment. Schenectady Police Benevolent Ass 'nv. City of

Schenectady, 299 A.D.2d 717, 718 (3d Dep't 2002).

111. Off Duty

1. Not covered is an action purely personal in nature where the

officer's uniform is pretext for conduct. For example, a police

officer motorist who started an altercation with another driver was

not within the scope of his employment when he was off duty and

reacted out of road rage. "Contrary to plaintiffs argument,

6304860v.1 Fitzgibbon's actions in detaining and assaulting him were not in

furtherance of any police business. Rather, they were the result of

Fitzgibbon's personal rage brought about by plaintiffs honking.

This conclusion is further supported by the fact that, at the time of

the incident, plaintiff, by his own admission, denies any

wrongdoing that would justify detaining and/or arresting him."

Mahmood v. City of NY, No. 01 CIV. 5899 (SAS), 2003 WL

21047728, 2003 U.S. Dist. LEXIS 7745, *3 (S.D.N.Y. May 8,

2003)

2. Where a police officer propositioned a civilian , who rejected the

officer's romantic advances, and the police officer arrested the

civilian and an action was brought for false arrest under § 1983.

The corporation counsel refused to defend and indemnify the

officer for his personal conduct, the officer was acting outside the

scope. "' [A]n employee's actions are not within the scope of

employment unless the purpose in performing such actions is to

further the employer's interest, or to carry out duties incumbent

upon the employee in furthering the employer's business.' In other

words, 'where an employee's conduct is brought on by a matter

wholly personal in nature, the source of which is not job related,

his actions cannot be said to fall within the scope of his

employment.'" Schenectady Police Benevolent Ass 'n. v. City Of

6304860v. l Schenectady, 299 A.D.2d 717, 718-19 (3d Dep't 2002) (citing

Stavitz v. City ofNew York, 98 A.D.2d 529, 531 (1st Dep't 1984)).

iv. Off duty police officers will be found to be within the scope of their

employment under certain circumstances.

1. "For purposes of this section, a police officer of any such

municipal corporation, authority or agency, although excused from

official duty at the time, shall be deemed to be acting in the

discharge of duty when engaged in the immediate and actual

performance of a public duty imposed by law and such public duty

performed was for the benefit of the citizens of the community

wherein such public duty was performed and the municipal

corporation, authority or agency derived no special benefit in its

corporate capacity." N.Y. Gen. Mun. Law§ 50-j (McKinney)

2. But if the activity was purely personal in nature, the conduct will

be outside the scope of employment.

a. For example, a police officer visiting another officer for a

romantic rendezvous was not within the scope of his

employment, even though both individuals were police

officers. "In this wrongful action death action, the court

properly found the City not liable on the basis of

respondeat superior inasmuch as defendant Williams was

not acting within the scope of his employment as a police

officer when he visited the decedent, a fellow police

6304860v.l officer, at her apartment for personal reasons and spent the

night with her as he had done numerous times before, and

she used his off-duty weapon to commit suicide." Pinkney

v. City ofN. Y., 52 A.D.3d 242, 242-43 (1st Dep't 2008).

b. An auxiliary police officer beat a minor who was loitering

outside a restaurant owned by the officer's parents. Since

he was off duty and not carrying out his official duties,

there was no defense or indemnification.

"Even viewing the facts most favorably to the plaintiffs, no

reasonable jury could conclude that Delgabbo was acting

under the color of law when he attacked Miqui. Plaintiffs

concede that at the time of the incident, Delgabbo was off

duty and out of uniform, that he did not flash his badge and

did not in any way announce to Miqui or the other boys

before, during, or after the incident that he was an auxiliary

officer or was acting in that capacity, that he issued no

commands, and that the gun he used to inflict the beating

was not issued by the police department." Miqui v. City of

NY., No. 01-CV-4628(FB)(VVP), 2003 WL 22937690,

2003 U.S. Dist. LEXIS 22337, *4 (E.D.N.Y. Dec. 5, 2003).

3. Certain activities may or may not be 'in scope of employment'

depending on Police Department procedures. Some of the clearest

examples come from cases involving accidental firearm

6304860v.1 discharges. If a procedure requires an officer to do something

while off duty, the officer will be working within the scope of their

employment while they are doing it.

a. An off duty officer was required to maintain his service

weapon. The weapon discharged while he was cleaning it.

On appeal, the Court of Appeals determined that since the

officer was doing exactly what department procedures

required him to do (maintain his weapon), he was within

the scope of his employment while cleaning the weapon.

Kull v. City of N. Y., 40 A.D.2d 829, 829-30 (2d Dep't

1972) (dissent), rev'd, 32 N.Y.2d 951 (1973).

b. In certain situations however, if an officer is not

specifically carrying out duties related to his employment,

the officer will not be considered to be within the scope of

employment. For example, an off duty officer placed his

service weapon under a mattress and left the room. The

gun discharged, killing his son. "Here, Joseph was not

acting in the performance of his duties and within the scope

of his employment when he placed the gun under his son's

mattress and when the accident occurred as he napped in

his home. Rather, he had returned home from work, placed

the unlocked, loaded revolver underneath his son's mattress

and gone downstairs to rest when his revolver accidentally

6304860v. I discharged several hours later. Thus, it cannot be said that

Joseph was engaged in the immediate and actual

performance of a public duty imposed by law." Joseph v.

City ofBuffalo, 83 N.Y.2d 141, 146 (1994)

4. If police officers are specifically carrying out their duties as police

officers, the municipality will defend and indemnify them, even if

they are off-duty.

5. Off-duty actions don't fall within the scope of employment unless

the officer was directly responding to the need for a police officer

or performing required duties.

v. Scope of Employment and Jurisdiction

1. A police officer's jurisdiction is state-wide. Crim. Proc. Law

140.10.

2. If a police officer is performing the duties of a police officer, he

will be indemnified by the municipality that employs him no

matter where in the state the action arose. For example, a

defendant police officer was employed by the Suffolk County , but

if he was acting in his capacity as a police officer, the County

would indemnify him even though the action arose in Queens

while he was off duty. Alijieris v. Am. Airlines, Inc., 63 N.Y.2d

370, 371-73 (1984).

III. GENERAL MUNICIPAL LAW§ 50-k

6304860v. l a. Governs the defense and indemnification of all New York City employees and is

the most restrictive of the three provisions for defense and indemnification.

b. This statute is applicable to New York City police officers, not§ 50-j.

c. The City will defend and indemnify employees provided:

i. the action arose from an incident while the employee was discharging

their duties and was within the scope of their employment;

IL and provided the employee was not in violation of a rule or regulation of

his agency.

d. The "scope of employment" in the 50-k context is a determination made by

Corporation Counsel based on the facts of each case. This determination can only

be set aside if it was arbitrary and capricious. For example, where an Internal

Affairs investigation determined that officers violated rules or procedures by

failing to provide medical assistance to a plaintiff, that provides a sufficient

factual basis to withhold defense and indemnification. See generally Williams v.

NY, 64 N.Y.2d 800 (1985); Wong v. Yoo, 649 F.Supp.2d 34, 75-77 (EDNY,

2009).

e. If the conduct also gives nse to a disciplinary hearing, defense and

indemnification may be withheld until the defendant police officer is exonerated

of wrongdoing.

1. Merely closing an IAB case relating to a police officer is not exoneration.

If there is no disciplinary proceeding, there can be no exoneration, which

could allow the City to withhold defense and indemnification. Lara v.

6304860v. J City of New York, 2014 WL 5463374, 2014 U.S. Dist. LEXIS 149920, *2

(SDNY, 2014).

f. "Discharge of Duties" and "Scope of Employment" are most often used together,

but they are in fact synonymous. Discharging ones duties means one is working

within the scope of your employment, and vice versa. While the common method

of describing this is to use both phrases, they are interchangeable. Sagal-Cotler v.

Board of Educ. Of City School District of City ofNew York, 20 N.Y.3d 671, 675-

76 (2013).

IV. Punitive Damages

a. None of the statutes require a municipality to indemnify any employee for

punitive damages but neither POL § 18 nor GML §50-j prohibit such a provision.

b. GML §50-j specifically allows municipalities to pass local laws allowing such

indemnification for police officers.

c. New York City, meanwhile, operates under GML §50-k, which has no such

provision. Additionally, the prohibition against indemnification for intentional

wrongdoing or recklessness in that section has been interpreted by courts as

preventing indemnification for punitive damages. Har(ford Acc. & Indem. Co. v.

Vil!. of Hempstead, 48 N.Y.2d 218, 225 (1979); McFadden v. Sanchez, 710 F.2d

907, 911 (2d Cir. 1983).

d. If a municipality passes its own indemnification law in lieu of POL § 18 or

modifies the statutory provisions of § 18, indemnification for punitive damages is

permitted. 1998 N.Y. Op. Att'y Gen. (Inf.) 1014 (1998).

6304860v. I e. Municipalities are not liable for punitive damages. If they do not indemnify

employees for such damages, is there an inherent conflict in having one lawyer

represent the public entity and individual defendants against whom punitive

damages are sought. Possibly, depending on the facts of the case.

1. "The second potential conflict in cases of this nature arise from the fact

that the County is not obligated to reimburse its officers for punitive

damages assessed against them even if they were acting in their official

capacity. Thus, the County has no monetary incentive to ensure that such

damages are not assessed.

When there is no question but that an officer was acting in his official

capacity, i.e., "under color of law," this potential conflict is not significant.

Although the interests of the County and the individual officer would not

be identical on the question of punitive damages, these divergent interests

would not conflict since the County would have no incentive in seeing that

punitive damages were assessed. Thus, under these circumstances, there

would be no reason why counsel representing both the County and the

individual officer would provide anything less than vigorous

representation to the officer on the question of punitive damages.

The issue becomes somewhat more complicated, however, when it is not

clear whether the officer was acting "under color of law" or in his private

capacity because in certain cases the assessment of punitive damages

might be influenced by the jury's determination of the "color of law

6304860v. I issue." In such a case, the conflict of interest between the County and the

individual officer could lead to inadequate representation of the officer.

Despite this potential problem, I do not believe that it existed under the

peculiar facts involved here. The basic issue before this jury was whether

it believed that Robert Pfeiffer was attempting to aid his allegedly

endangered wife, or whether it believed instead that he was attempting to

punish the plaintiff for making romantic advances toward her. If the latter

was the case, as the jury evidently found, then the punitive damages

assessed could be seen as appropriate regardless of whether defendant

Pfeiffer was acting "under color of law." Thus, I do not believe that

defendant Robert Pfeiffer suffered any prejudice by his representation on

the issue of punitive damages." Dunton v. Suffolk Cty., 580 F. Supp. 974,

976 (E.D.N.Y. 1983)

6304860v.l

POL§ 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, bylaw, 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

6303262v.I (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.

6303262v.1 (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 paii 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 chieflegal 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.

6303262v.J 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, bylaw, 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.

6303262v, I

GML § 50-j. Liability of police officers for negligence in the performance of duty

1. Notwithstanding the provisions of any general, special or local law, charter or code to the contrary, every city, county, town, village, authority or agency shall be liable for, and shall assume the liability to the extent that it shall save harmless, any duly appointed police officer of such municipality, authority or agency for any negligent act or tort, provided such police officer, at the time of the negligent act or tort complained of, was acting in the performance of his duties and within the scope of his employment.

2. For purposes of this section, a police officer of any such municipal corporation, authority or agency, although excused from official duty at the time, shall be deemed to be acting in the discharge of duty when engaged in the immediate and actual performance of a public duty imposed by law and such public duty performed was for the benefit of the citizens of the community wherein such public duty was performed and the municipal corporation, authority or agency derived no special benefit in its corporate capacity.

3. No action or special proceeding instituted hereunder shall be prosecuted or maintained against the municipality, authority or agency concerned or such police officer unless notice of claim shall have been made and served upon such municipality, authority or agency in compliance with section fifty-e of this chapter. Every such action shall be commenced pursuant to the provisions of section fifty-i of this chapter.

4. The provisions of this section shall not apply to the city of New York.

5. The provisions of this section shall not apply to the New York city housing authority.

6. a. In addition to the requirements of subdivision one of this section, upon discretionary adoption of a local law, ordinance, resolution, rule or regulation, any city, county, town, village, authority, or agency shall provide for the defense of any civil action or proceeding brought against a duly appointed police officer of such municipality, authority or agency and shall indemnify and save harmless such police officer from any judgment of a court of competent jurisdiction whenever such action, proceeding or judgment is for punitive or exemplary damages, arising out of a negligent act or other tort of such police officer committed while in the proper discharge of his duties and within the scope of his employment. Such municipality, authority or agency is hereby authorized and empowered to purchase insurance to cover the cost of such defense and indemnification. b. The determination of whether any such police officer properly discharged his duties within the scope of his employment shall be made in a manner which shall be promulgated by the chief executive officer or if there be none, the chieflegislative officer, and adopted by the governing board of such municipality, authority or agency.

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GML § 50-k. Civil actions against employees of the city of New York

1. As used in this section:

a. "Agency" shall mean a city, county, borough, or other office, position, administration, council, department, division, bureau, board, community board, commission, institution or agency of government, the expenses of which are paid in whole or in part from the city treasury, but shall not include, unless otherwise provided by law, any public authority, public benefit corporation or board of education.

b. "City" shall mean the city of New York.

c. "Comptroller" shall mean the comptroller of the city.

d. "Corporation Counsel" shall mean the corporation counsel of the city.

e. "Employee" shall mean any person holding a position by election, appointment or employment in the service of any agency, whether or not compensated, or a volunteer expressly authorized to participate in a city 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.

2. At the request of the employee and upon compliance by the employee with the provisions of subdivision four of this section, the city shall provide for the defense of an employee of any agency in any civil action or proceeding in any state or federal court including actions under sections nineteen hundred eighty-one through nineteen hundred eighty-eight of title forty two of the United States code arising out of any alleged act or omission which the corporation counsel finds occurred while the employee was acting within the scope of his public employment and in the discharge of his duties and was not in violation of any rule or regulation of his agency at the time the alleged act or omission occurred. This duty to provide for a defense shall not arise where such civil action or proceeding is brought by or on behalf of the city or state or an agency of either.

3. The city 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 approved by the corporation counsel and the comptroller, 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 and in the discharge of his duties and was not in violation of any rule or regulation of his agency at the time the alleged damages were sustained; 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 paii of the employee.

4. The duty to defend or indemnify and save harmless prescribed by this section shall be conditioned upon

6303261v.l (a) delivery to the corporation counsel at the office of the law department of the city by the employee of 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

(b) the full cooperation of the employee in the defense of such action or proceeding and in defense of any action or proceeding against the city 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 city provide for his defense pursuant to this section. In the event that the corporation counsel shall assume an employee's defense and thereafter the employee fails to or refuses to cooperate in the formation or presentation of his defense, the court shall permit the corporation counsel to withdraw his representation ten days after giving written notice to the employee of his intention to discontinue such representation.

5. In the event that the act or omission upon which the court proceeding against the employee is based was or is also the basis of a disciplinary proceeding by the employee's agency against the employee, representation by the corporation counsel and indemnification by the city may be withheld

(a) until such disciplinary proceeding has been resolved and

(b) unless the resolution of the disciplinary proceeding exonerated the employee as to such act or omission.

6. Every action or proceeding instituted hereunder, including an action brought to enforce a provision of sections nineteen hundred eighty-one through nineteen hundred eighty-eight of title forty-two of the United States code, shall be commenced pursuant to the provisions of section fifty-i of this chapter and within one year and ninety days. No action or proceeding instituted hereunder, other than one instituted pursuant to sections nineteen hundred eighty- one through nineteen hundred eighty-eight of title forty-two of the United States code shall be prosecuted or maintained against the city or any agency or an employee unless notice of claim shall have been made and served upon the city in compliance with section fifty-e of this chapter and within ninety days after the claim arises.

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, except that the provisions of subdivision six shall apply only to actions and proceedings instituted on or after the effective date of this section.

9. The provisions of this section shall not be construed in any way to impair, alter, limit, modify, or abrogate or restrict any immunity available to or conferred upon any unit, entity, officer of employee of the city or any agency 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, federal or local law or common law.

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