January 25, 2011

Providing legal representation to public officers and employees being sued

Providing legal representation to public officers and employees being sued
Vitucci v City of New York, 272 AD2d 620

A New York City employee, Jacqueline Vitucci, was named as a defendant in a federal lawsuit. He asked Corporation Counsel to defend him in accordance with Section 50-k of the General Municipal Law.

Like similar representation provisions, Section 50-k(2) requires the Corporation Counsel to defend municipal employees in civil actions which the corporation counsel finds occurred while the employee was acting within the scope of his [or her] public employment and in the discharge of his duties and was not in violation of any rule or regulation of his [or her] agency at the time the alleged act or omission occurred.

When Vitucci’s request was denied, he filed a petition seeking a court order requiring the Corporation Counsel to defend him. The Appellate Division sustained a lower court ruling dismissing his petition.

The court’s rationale: Whether an employee was acting within the scope of his or her employment and is entitled to legal representation must be determined in the first instance by the Corporation Counsel, whose determination may be set aside only if it lacks a factual basis, and in that sense, is arbitrary and capricious.

The court said that the report prepared by the Special Commissioner for Investigation for the New York City School District provided the Corporation Counsel with a sufficient factual basis to determine that the acts allegedly committed by Vitucci were not within the scope of his employment.

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