September 28, 2010

Representation and indemnification of public officers and employees sued in connection with official duties

Representation and indemnification of public officers and employees sued in connection with official duties
Tarrant v Schenectady Police Dept., Supreme Court, [Not selected for publication in the Official Reports, see, also, Tarrant v. City of Schenectady, 279 AD2d 870]

A public officer’s or employee’s right to “employer provided” representation and indemnification in the event he or she is sued and held liable in connection with the performance of official duties is an important one.

The Tarrant case illustrates the fact that where the employer declines to provide for such representation or indemnification, the individual must act promptly, and correctly, if he or she wishes to challenge the employer’s decision.

On February 17, 1999, Pamela Tarrant, an Afro-American, initiated a lawsuit against the City of Schenectady, its police department and police officer John Lewis for alleged violations of her civil rights. This particular aspect of the litigation concerns Lewis’ claim that the City is required to pay for his defense.

In the course of Tarrant’s action, Lewis contended that the City “failed to follow a procedure set forth in a Collective Bargaining Agreement” providing for this benefit. The City, on the other hand, argued that the Agreement did not apply in Lewis’ case because:

1. Lewis had been terminated from his position effective November 13, 1998; and

2. “The words and conduct of Lewis which purportedly gave rise to Ms. Tarrant’s action at law were outside the scope of Officer Lewis’ duties and were, therefore, not subject to defense under the Collective Bargaining Agreement.”

State Supreme Court Justice Robert E. Lynch did not have the opportunity to consider these important issues, however. Why? According to the ruling, the court did not have jurisdiction to consider Lewis’ petition since it was filed in connection with “a separate legal action ... initiated by Ms. Tarrant.”

Although the Taylor Law agreement clearly allowed Lewis to challenge the refusal of the City to provide for his defense “by an Article 78” action, he was required to initiate such a challenge in a timely fashion.

To do this he was required to take a number of steps including “purchasing an index number ... filing a Notice of Petition or an Order to Show Cause, along with a Verified Petition ... and serving the City” with the complaint. He failed to do this, despite being advised by the City’s Corporation Counsel, Michael Brockbank, that he was required to do so if he wished to challenge the City’s determination.

Another problem for Lewis concerned the fact that he did not file an “Answer” to Tarrant’s complaint within the 30-day period allowed for this purpose. This, said Justice Lynch, meant that Lewis was in “default” and the “affirmative relief” he was seeking as part of Tarrant’s lawsuit “is clearly not countenanced under New York Law.”*

It seems clear that in the event a public employer rejects a demand for representation or indemnification when a individual is sued in connection with some act or omission he or she claims is work related, it would be in the best interests of the individual to obtain the services of a private attorney immediately for purpose of representation in the litigation to avoid default. While the individual may later elect to challenge the employer’s decision, his or her interests would, in the meantime, be represented in the action.

In many instances the representation and indemnification provisions of Section 18 of the Public Officers Law apply. A municipality may refuse to provide for Section 18 representation or indemnification if its attorney determines that the individual was not action within the scope of his or her public employment or duties or where the alleged injury or damage resulted from “intentional wrongdoing or recklessness” on the part of the individual. The individual is required to [1] provide the employer with the “legal papers” within 10 days of after being served and [2] provide “full cooperation” in connection with its defense of the action.

* In another action brought against a Schenectady police officer, DiSorbo v Pederson, DiSorbo filed a “default judgment against Pederson” because he failed to answer allegations of “illegal arrest and harassment” then pending in federal district court. The City earlier advised Pederson that it would not provide for his defense or indemnification because he was “uncooperative when questioned about the case.”
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