Public employer’s agreement to defend and indemnify officers and employees being sued in a civil action may be rescinded for failure to cooperate
Lancaster v Incorporated Vil. of Freeport, 2012 NY Slip Op 01465, Appellate Division, Second Department
The Board of Trustees of the Incorporated Village of Freeport revoked its earlier resolution adopted in accordance with §18 of the Public Officers Law providing a defense and indemnification in certain civil actions for certain officers or employees of the Village. *
§18, in pertinent part, provides for the defense and indemnification of officers and employees of public entities being sued for an act or omission related to the performance of official duties.
Subdivision 5 of §18 requires the officer or employee to meet the following requirements in order to meet the following conditions with respect to the public entity’s “duty to defend or indemnify and save harmless” the individual being sued:
(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.
In response to the officers and employees challenging the action of the Board rescinding its earlier resolution to defend and indemnify them, the Appellate Division sustained Supreme Court’s dismissal of their petition.
The Appellate Division explained that such action on the part of the Board was neither arbitrary and capricious nor an abuse of discretion as the conduct of such officers and employees “after their cooperation in the defense of those actions was diligently sought, was one of willful and avowed obstruction.”
* §17 of the Public Officers Law provides similar protections to officers and employees of the State as the employer.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01465.htm
