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January 19, 2018

Applying for reimbursement of reasonable counsel fees and litigation expenses associated with being a named respondent in a 42 USC §1983 Civil Rights action pursuant to Public Officers Law §17

Applying for reimbursement of reasonable counsel fees and litigation expenses associated with being a named respondent in a 42 USC §1983 Civil Rights action pursuant to Public Officers Law §17
Rademacher v Schneiderman, 2017 NY Slip Op 08416, Appellate Division, Third Department; decided with Swack v Schneiderman, Appellate Division, Third Department; 2017 NY Slip Op 08421*

In March 2012 an inmate at Attica Correctional Facility, George Williams, brought a 42 USC §1983 action alleging that Matthew Rademacher, a correction officer, and certain other correction officers, violated his civil rights by physically attacking him without justification and the filed false reports and statements that resulted in disciplinary sanctions against him. Williams contended that all the correction officers involved were acting within the scope of their employment at the time.

Rademacher requested, and the respondent in this action, Eric T. Schneiderman, as Attorney General of the State of New York [Law Department], said that the State, pursuant to Public Officers Law §17, would reimburse Rademacher for the reasonable counsel fees and litigation expenses associated with his defense in Williams' 42 USC §1983 action.

In January 2013, Rademacher and two of the other correction officers were indicted on charges of gang assault in the first degree, tampering with physical evidence and ]official misconduct. Ultimately Rademacher, in full satisfaction of the indictment, pleaded guilty to the charge of official misconduct. Pursuant to the plea agreement, Rademacher was sentenced to "a one-year conditional discharge" and he resigned from his position as a correction officer.

The Williams Civil Rights action pursuant to 42 USC §1983, however, had been stayed during the pendency of the criminal action and in May 2015, the Law Department advised Rademacher that in consideration of his guilty plea, the State no longer had a duty to pay for his legal representation in the Williams action pursuant to Public Officers Law §17. 

Rademacher initiated a CPLR Article 78 proceeding in Supreme Court seeking, among other things, an order compelling the Law Department to rescind its determination and pay for his legal defense in the Williams action. Supreme Court granted Rademacher's application and the Law Department appealed.

The Appellate Division initiated its analysis of the case by stating that there was no  question that the State initially had a duty to defend Rademacher in the Williams action §1983 complaint alleged that, while acting within the scope of his employment as a correction officer, [Rademacher] "caused Williams to suffer physical, emotional and psychological injuries by physically attacking him, intentionally and without justification, and thereafter authoring or engineering written statements and reports falsely accusing him of various crimes, offenses and rules violations."

The Law Department, however, argued that the State's duty to defend Rademacher ceased once he pleaded guilty to official misconduct because "the guilty plea established, as a matter of law, that the allegations underlying the civil complaint arose outside the scope of [Rademacher's] employment and were the result of intentional misconduct."

The Appellate Division disagreed, explaining that:

1. "As is the case in the private insurance realm, the state's determination to disclaim financial responsibility for an employee's defense is rational only if it can be determined, as a matter of law, 'that there is no possible factual or legal basis on which [the State] may be obligated to indemnify the employee'";

2. Pursuant to Public Officers Law §17 (3) (a), the State has an obligation to indemnify its employees for any judgment or settlement obtained against them in state or federal court, so long as "the act or omission from which [the] judgment or settlement arose occurred while the employee was acting within the scope of his [or her] public employment or duties" and "the injury or damage [did not] result[] from intentional wrongdoing on the part of the employee." In other words, said the court, the State will not have a duty to indemnify an employee if the act or omission giving rise to the civil judgment or settlement occurred outside the scope of his or her employment or was the product of intentional wrongdoing; and

3. Neither Rademacher's allocution** of his actions in his plea nor the elements of official misconduct preclusively established that the acts alleged in the 42 USC 1983 complaint occurred while Rademacher was acting outside the scope of his employment or that the injuries or damages allegedly sustained by Williams were the result of Rademacher's intentional wrongdoing.

The Appellate Division said that Rademacher, "[i]n allocuting to this crime," did little more than recite the elements of official misconduct, adding only that "he committed the unauthorized act on August 9, 2011 in Wyoming County while employed by the Department of Corrections and Community Supervision."

However, said the court, assuming, as the Law Department contended, that the commission of an unauthorized act for purposes of an official misconduct conviction falls outside the scope of employment and constitutes intentional wrongdoing, Rademacher's plea allocution did not particularize the unauthorized act that he committed or otherwise include admissions to any of the conduct alleged in the civil complaint in the Williams action.

Accordingly, the Appellate Division held that it could not conclude, as a matter of law, "that there is no possible factual or legal basis on which the state may eventually be obligated to indemnify [Rademacher]." This, said the court, is because the state must defend the entire action "[i]f any of the claims against [its employee] arguably arise from covered events."

N.B. In the event a public officer or employee in a defendant in a criminal action, §19.2.(a) of the Public Officers Law provides, in pertinent part, that "it shall be the duty of the state to pay reasonable attorneys' fees and litigation expenses incurred by or on behalf of an 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 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 with an appearance before a grand jury which returns no true bill against the employee where such appearance was required as a result of any act which occurred while such employee was acting within the scope of his [or her] public employment or duties unless such appearance occurs in the normal course of the public employment or duties of such employee.

It should also be noted that although not every employee is a public officer, all public officers are public employees.

* With the exception of the name of the Petitioner in Swack v Schneiderman, the facts and procedural history in the Swack v SchneidermanCPLR Article 78 proceeding are indistinguishable from those in Rademacher v Schneiderman.

** An allocution is a formal statement made to the court by the defendant who has been found guilty prior to being sentenced. An accused who had pleaded guilty to a criminal  charge or who had pleaded nolo contentere is deemed to "having been found guilty" of that criminal charge. However, although  a plea of nolo contendere has the same immediate effect as a guilty plea, it cannot be used against the individual in another cause of action.

TheRademacher decision is posted on the Internet at:

The Swack decision is posted on the Internet at:


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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. 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 posted to this blog is presented with the understanding that neither the publisher nor members of the NYPPL staff are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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