Wednesday, June 13, 2012

Providing employees with legal representation and reimbursement for legal fees and expenses incurred in defense of a civil action arising out work related activities

Providing employees with legal representation and reimbursement for legal fees and expenses incurred in defense of a civil action arising out work related activities
Thomas v New York City Dept. of Educ., 2012 NY Slip Op 04280, Appellate Division, First Department [See, also, Sagal-Cotler v Board of Educ. of City School Dist. of the City of N.Y., 2012 NY Slip Op 04281, Appellate Division, First Department]

The genesis of the Thomas action: An individual employed as a paraprofessional by the New York City Department of Education (DOE), sought to obtain legal representation pursuant to Education Law §2560(1) when she was named as the defendant in a civil action.*

To obtain legal representation pursuant to the statute in such a situation, however, the individual must meet three requirements: 

1. He or she must have acted within the scope of her employment;

2. He or she must have acted in the discharge of her duties; and

3. His or her action must not have been in violation any rule or regulation of the DOE at the time of the incident.

The Corporation Counsel rejected the individual request for representation and indemnification if held liable.

Noting that the Corporation Counsel is empowered by General Municipal Law §50-k(2) to make factual determinations in the first instance as to whether the individual violated any agency rule or regulation, which "determination may be set aside only if it lacks a factual basis and in that sense, is arbitrary and capricious," the Appellate Division sustained the Corporation Counsel’s decision.

Although the individual denied the charges that had been filed against her, the court said that the allegations against her were "substantiated" at the conclusion of an investigation. Significantly, said the Appellate Division, the individual did not challenge the disciplinary findings against her.

Accordingly, the Corporation Counsel’s determination denying the individual with legal representation and indemnification in a civil action arising out of this incident had a rational basis and was not arbitrary and capricious, an abuse of discretion, or contrary to law.

In so ruling the Appellate Division sustained Supreme Court’s holding that Education Law §2560, which incorporates by reference General Municipal Law §50-k, and Education Law §3028, are not in conflict and should be read together and "applied harmoniously and consistently," citing Alweis v Evans, 69 NY2d 199.

The Appellate Division explained that "It is the duty of the courts to so construe two statutes that they will be in harmony, if that can be done without violating the established canons of statutory interpretation," (see McKinney's Consolidated Laws of New York, Book 1, Statutes §398).

In this instance the Appellate Division said that individual was acting within the scope of her employment since the incident occurred in a classroom but the alleged action, hitting a child on the head during a lesson, violated DOE Chancellor's Regulation A-420 as well as a Statewide rule prohibiting corporal punishment (see 8 NYCRR 19.5[a][2]).

Accordingly, said the court, the alleged act was not undertaken in the discharge or furtherance of the individual’s duties as a school employee, regardless of the purpose of the alleged act.
The decision notes that it is a fundamental rule of statutory construction that a court, "in interpreting a statute, should attempt to effectuate the intent of the Legislature" and the plain meaning of the statutory language is "the clearest indicator of legislative intent.”

Both Education Law §§3028 and 2560 provide for the legal representation and indemnification of Board of Education employees. However, they each set forth different circumstances under which such representation and indemnification are to be provided.

When read together, said the court, it is clear that, pursuant to Education Law §3028, a board of education must provide legal representation and pay attorney's fees and expenses incurred in the defense of an employee in any action arising out of a disciplinary action taken against a student by an employee while acting in the scope of his or her employment and in the discharge of his or her duties, unless, pursuant to Education Law §2560(1), the employee is a member of a board of education in a city having a population of one million or more, and, pursuant to General Municipal Law §50-k, he or she violated any rule or regulation of the agency.

* §§17 and 18 of the Public Officers Law respectively address providing State officers and employees and officers and employees of political subdivisions of the State with legal representation and reimbursement for legal fees and expenses incurred in defense of a civil action arising out an act or omission involving the performance of official duties. §19 of the Public Officers Law provides for the state to pay reasonable attorneys' fees and litigation expenses incurred by or on behalf of a State officer or employee in his or her defense of a criminal proceeding in a state or federal court arising out of any act which occurred while such officer or employee was acting within the scope of his or her public employment or duties upon his or her acquittal or upon the dismissal of the criminal charges against him or her or reasonable attorneys' fees incurred in connection.

The Thomas decision is posted on the Internet at:

The Sagal-Cotler decision is posted on the Internet at:

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at

Challenging Adverse Personnel Decisions at

The Disability Benefits E-book: at

Layoff, Preferred Lists at


Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.


Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material in this blog is presented with the understanding that the publisher is not providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader should seek such advice from a competent professional.

Items published in NYPPL may not be used for commercial purposes without prior written permission to copy and distribute such material. Send your request via e-mail to

Copyright© 1987 - 2017 by the Public Employment Law Press.


N.B. From time to time a political ad or endorsement may appear in the sidebar of this Blog. NYPPL does not have any control over such posting.