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November 23, 2010

Representation and indemnification of public officers and employees sued for acts or omissions related to the performance of official duties

Representation and indemnification of public officers and employees sued for acts or omissions related to the performance of official duties
Walsh v County of Saratoga, 256 AD2d 953 [decided with Mason v County of Saratoga]

In this “tax sale” lawsuit, the Saratoga County Treasurer, George Gasser, said that his official position in the matter and that of the Board of Supervisors were incongruous. When the County Attorney said that he would represent the County in the litigation, Gasser sought independent counsel.

Gasser subsequently asked the County to reimburse his attorney’s fees as provided under Section 18 of the Public Officers Law.

The county declined to do so, claiming that Gasser “never made the required written request for a defense.”

A State Supreme Court justice ruled that Gasser “should be insulated from litigation expenses arising out of the performance of his duties” and the county appealed.

The Appellate Division rejected the county’s contention that Gasser’s failure to “tender the required written notice” precluded its reimbursing him for his legal costs. It said it “consistently held that a statute’s notice requirements need not be deemed a condition precedent to an employee’s right to legal representation.”

According to the ruling, the purpose of such a notice is “to prevent default and to afford the municipality an opportunity to promptly investigate the incident to determine, among other things, whether the employee was acting within the scope of his or her employment.”

The court found that “it was undisputed” that Gasser was acting within the scope of his employment” and that the county was aware of the proceedings at their commencement and had ample opportunity to investigate.

The Appellate Division, affirming the lower court’s ruling, said that there was “no impediment to [Gasser’s] representation pursuant to Public Officers Law Section 18.” Gasser was statutorily entitled to representation by independent counsel once the County Attorney informed him that he would not be appearing on his behalf in the matter.
NYPPL

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