June 28, 2012

Duty to defend and indemnify an employee being sued triggered by allegations of misconduct related to the performance of official duties

Duty to defend and indemnify an employee being sued triggered by allegations of misconduct related to the performance of official duties
Dreyer v City of Saratoga Springs,
22 Misc 3d 1109(A)

The principal issue in Erin Dreyer’s suit against the City of Saratoga Springs and its City Council is whether the City is required to provide or pay for Dreyer’s defending herself in two Federal court actions in U.S. District Court for the Northern District of New York, Moore v Dreyer and Curley, 05-CV-1060 and Cornick v City of Saratoga Springs, Curley and Dreyer, 06-CV-0138.

Dreyer served as the City’s Deputy Commissioner of Public Safety. The relationship between Dreyer and Police Chief Edward Moore and Assistant Chief James Cornick became strained and ultimately Moore and Cornick alleged that certain of Dreyer's actions constituted criminal violations and misconduct by a public official. This resulted in the New York State Police investigating Dreyer's conduct. Later a Special Prosecutor was appointed and a Grand Jury was convened to review Dreyer's conduct.

Although the Grand Jury returned a "no-bill", [it did not indict Dreyer for any crime], it reported that she had committed several acts of misconduct, performed negligently, and deliberately acted to create and foster dissension in the police department. The report recommended that she be disciplined or removed from office.

Subsequently Moore commenced a Federal court action to recover damages against Dreyer and Curley in which he alleges that the two conspired under color of law and state action to violate his constitutional rights through adverse employment actions designed to create a hostile work environment and to force him to resign, and further, that Dreyer, with Curley's approval, intentionally and maliciously implemented a course of hostile and disparaging conduct, disseminated, publicly and privately, defamatory information about him, and illegally retaliated when he spoke out against their conduct.

The City Council decided that Curley's conduct, as alleged in Moore's complaint, fell within the scope of his official duties as Commissioner of Public Safety, and adopted a resolution to defend and indemnify Curley but determined that Dreyer's acts, as alleged in Moore's complaint, were not within the scope of her official duties as Deputy Commissioner of Public Safety and refused to provide to her a defense and indemnification. It did the same with respect to the lawsuit filed by Cornick.

Dreyer sued the City, contending that the City's determination not to provide for her defense was made in violation of law, was irrational and was arbitrary and capricious. She argued that by enacting City Code §9-1, the City intended to give City officers and employees the same protections afforded to such personnel by Public Officers Law §18. Section 18, in pertinent part, provides “the provisions of this section shall apply to any public entity (a) whose governing body has agreed by the adoption of local law, bylaw, resolution, rule or regulation (i) to confer the benefits of this section upon its employees....”

Dreyer claimed that as Deputy Commissioner she was for all practical purposes the alter ego of the Commissioner and had been properly invested by the Commissioner to carry out his broad authority to manage and supervise the police department. The City, in rebuttal, said that it correctly concluded that claims alleged against Dreyer arose from actions taken outside of her official duties and did not give rise to an obligation of the City to defend her in both actions and that its determination was rational and proper. Further, said the City, its decision that Curley's conduct giving rise to these two actions fell within his official responsibilities and that hers did not, do not constitute disparate treatment of the Commissioner and Deputy Commissioner.

Justice Nolan said that a defense under Public Officers Law §18 (a) must be provided even though an employee's actions "may be characterized as intentional wrongdoing" unless it can be determined that the conduct was "entirely unrelated to the employer's business". The court also noted that a municipal employer's statutory duty under Public Officers Law §18 to provide a defense to its officers and employees has been likened to an insurance company's contractual duty to provide a defense to one of its insured policyholders and, citing Automobile Ins. Co. of Hartford v Cook, 7 NY3d 131, commented that the Court of Appeals recently said that "when [an insurance] policy represents it will provide the insured with a defense, we have said that it actually constitutes litigation insurance' in addition to liability coverage".

Justice Nolan decided that in determining whether or not to provide Dreyer representation and indemnification, the City's inquiry should have been confined to merely a review of the two complaints "to ascertain whether [they] charge[d] that [Dreyer] was acting within the scope of...her employment at the time of the alleged wrongdoing" and “If the complaints made such allegations - and they do - the City's analysis ends there, and a defense must be provided unless, by local law, the City had adopted - which it had not - additional review requirements.”

In contrast, said the court, “any independent factual analysis by a municipality is appropriate only when the complaint fails to allege that an employee at the time of the wrongdoing was acting within the scope of employment.”

The bottom line: in determining whether Dreyer was entitled to be defended in the Moore and Cornick actions, the City was limited by Public Officers Law §18(3) and City Code §9-1 to a review of the allegations in the complaint, which did allege Dreyer was acting within the scope of her employment. By going beyond these allegations and engaging on its own in an independent assessment of the underlying facts, the City exceeded the limits on its discretion imposed by Public Officers Law §18(3) (a) and City Code 9-1. Accordingly, the court directed the City to provide Dreyer with a defense in both federal actions and to reimburse her reasonable costs of her defense to date in both actions.

Justice Nolan said that he would jurisdiction to fix said amount if the parties are unable to agree such amount.

The full text of the decision is posted on the Internet at:


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