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Friday, May 09, 2014

A collective bargaining agreement may obligate the employer to paying certain legal expenses incurred by an employee in the negotiating unit


A collective bargaining agreement may obligate the employer to paying certain legal expenses incurred by an employee in the negotiating unit
Local 342, Long Is. Pub. Serv. Employees v Huntington, 2014 NY Slip Op 03271, Appellate Division, Second Department

Public Officers Law §18*permits a political or civil subdivision of the State whose governing body has agreed by the adoption of local law, by-law, resolution, rule or regulation to “confer the benefits of the section” upon its employees, and (ii) to be held liable for the costs incurred under these provisions including the defense and indemnification its officers and employees, other than the sheriff of any county or an independent contractor.

This provision may be triggered in any civil action or proceeding, state or federal, arising out of any alleged act or omission which occurred or allegedly occurred while the officer or employee was acting within the scope of his or her public employment or duties.

However, this duty to provide for a defense does not arise where such civil action or proceeding is brought by or on behalf of the public entity employing such employee.

As the Local 342 decision demonstrates, a political or subdivision of the State may also obligate itself to be liable for such costs by including such an obligation in a collective bargaining agreement.

An arbitrator determined that the Town of Huntington had breached a provision in a collective bargaining agreement by failing to pay certain legal fees on behalf of an employee in the collective bargaining unit.

The Appellate Division said that Supreme Court properly concluded that the arbitrator's determination did not clearly violate a strong public policy, was not totally or completely irrational, and did not manifestly exceed a specific, enumerated limitation on the arbitrator's power.

The court explained that although the payment of a public employee's legal fees "would constitute an impermissible donation from the public purse in instances where there is no prior legal obligation on the part of the State or a municipality to provide reimbursement, the reimbursement is proper and considered additional remuneration where there is a prior legal obligation" to do so.

In this instance, said the Appellate Division, the relevant collective bargaining agreement expressly created a prior legal obligation on the part of the Town to pay the subject legal fees incurred by the individual.**
* Public Officers Law §17, provides for the defense and indemnification of officers and employees of the State as the employer by the State. .

** See Civil Service Law Section 204-a
.
The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2014/2014_03271.htm
.

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

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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