Providing legal representation and indemnification of State officers and employees
Samuels v Vacco, Appellate Division, 251 AD2s 10
Section 17 of the Public Officers Law provides that a state officer or employee is entitled to representation by the Attorney General if the individual is sued as a result of his or her performing official duties. Under certain conditions, the individual may be entitled to be represented by a private attorney rather than by the Attorney General.*
Section 17 provides for representation and indemnification only in a civil action or proceeding in state or federal court arising out of any alleged act or omission which occurred while the individual was acting within the scope of his or her public employment.
David G. Samuels was named as a defendant in a civil rights action brought pursuant to 42 USC 1983. He decided that he preferred to be represented by his own, private, counsel rather than by the Attorney General but wanted the Attorney General to pay his legal fees. When the Attorney General declined to reimburse him for his legal fees if Samuels employed private counsel, Samuels sued.
The Appellate Division rejected Samuels’ petition. The court said Samuels did not allege that he was acting outside the scope of his employment and thus “there was never any possibility that [he] would be held liable for unreimbursable damages, either compensatory or punitive.”
Would it be possible for the individual to claim he or she was acting “outside the scope of his or her employment,” in an effort to obtain private counsel?
Surely, but such a representation would constitute an admission such that the provisions set out in Section 17 are not triggered and the Attorney General would be under no obligation to pay the individual’s attorney’s fees nor would the State be liable to reimburse the individual for any damages won by the plaintiff.
Are there any circumstances under which an officer or employee may claim that he or she is entitled to representation by private counsel in lawsuits connected with the performance of official duties?
Yes: when the Attorney General, or a court, determines that such representation would be appropriate or because there is an actual or potential conflict of interest. Under such circumstances the individual is entitled to be represented by private counsel and the State is required to pay the individual’s “reasonable attorneys’ fees and litigation expenses” and any damages for which the individual may be held liable.
* Section 18 of the Public Officers Law authorizes political subdivisions of the State to provide for the “defense and indemnification” of officers and employees sued in connection with the performance of their official duties.