January 18, 2021

Challenging a school board's approving the cost of providing for the defense and indemnification of board members and district officers in an appeal to the Commissioner of Education

The Applicant [Petitioner] in this appeal to the Commissioner of Education, among other things, challenged the school board's approval of resolutions to pay for the cost of the defense and indemnification of certain members of the school board and district officers in connection with prior appeals under Education Law §310. Interim Commissioner of Education Betty A. Rosa said the Petitioner's application must be denied and the appeal must be dismissed.

Petitioner had filed several prior appeals and applications involving various school district officers and the school board had voted to provide for the defense and the indemnification of the district officers in such prior appeals. Petitioner, in the instant appeal, contended that the school board had "improperly authorized the defense and indemnification of 'individuals who do not possess certificates of good faith', because the indemnified officers failed to notify the board of the commencement of the proceedings against them within five days as required by Education Law §3811(1)."

The Commissioner initially addressed some procedural issues and ruled:

1. The Petitioner's applications concerning the board's authorization for "defense and indemnification" in three of the four events must be dismissed as untimely* as they were not commenced "within 30 days from the making of the decision or the performance of the act complained of" by the school board and the Applicant failed to show "good cause" for the Commissioner to excuse such delay; and

2. Petitioner's application to remove certain school officers from their positions was untimely as a removal application must be commenced within 30 days of the petitioner’s good faith discovery of the misconduct alleged in the application even though the alleged misconduct occurred "more than 30 days before the application was instituted."

Turning to the merits of Petitioner’s several challenges to the school board's actions concerning providing for the defense and indemnification of district officers, the Commissioner said that a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief. Further, explained the Commissioner, Education Law §3811 requires a board of education to defend and indemnify school board members, officers and employees if: 

(1) The targets of the petitioner's appeal notify the board in writing of the commencement of an action or proceeding against them within five days after service of process;

(2) The action or proceeding arises out of the exercise of their powers or the performance of their duties; and

(3) A court or the Commissioner, as the case may be, certifies that they appeared to act in good faith with respect to the exercise of their powers or the performance of their duties.

Further, said the Commissioner, Public Officers Law §18(3) provides for defense and indemnification "in any civil action or proceeding arising out of any alleged act or omission which occurred or allegedly occurred while a public employee was acting within the scope of his or her employment or duties, so long as he or she: 

(1) provides a written request for defense along with copies of the relevant pleadings within 10 days of service of such pleadings upon the employee; and 

(2) cooperates fully in his or her defense. 

Public Officers Law §18, however, contains no requirement that a public employee obtain a certificate of good faith to avail him or herself of its protections.

Citing Matter of Scimeca v. Brentwood Union Free Sch. Dist., 140 AD3d 1174, the Commissioner opined that "once adopted by a public entity," Public Officers Law §18 normally becomes the exclusive source of a public employee’s defense and indemnification rights, "unless the governing body of such public entity has provided that [the] benefits [of Public Officers Law §18] shall supplement, or be in addition to, defense or indemnification protection conferred by another enactment.”

Finding that the school board has adopted a board policy which “recognizes” the board’s duty to defend and indemnify district officers under Education Law §3811 and additionally “confers” upon district officers the benefits of Public Officers Law §18, the Commissioner concluded that Petitioner’s reliance on the argument that Education Law §3811 is "the only vehicle for the board to authorize the defense and indemnification of district officers" was misplaced. 

The Commissioner noted that Petitioner claimed that providing for the defense and indemnification of the relevant officials was improper "because the indemnified officers did not obtain certificates of good faith."  However, said the Commissioner, such certification is not required to be defended or indemnified pursuant to Public Officers Law §18. 

Accordingly, the Commissioner ruled that Petitioner has failed to prove that any aspect of the board’s December 19, 2019 vote to approve the defense and indemnification of district officers was unwarranted or improper under Public Officers Law §18.  

Additionally, with respect to Education Law §3811, the Commissioner said she "took notice" that the record indicated the officers requested that the Commissioner certify, pursuant to Education Law §3811, that they acted in good faith and thus complied with Education Law §3811 with respect to the underlying appeals.

Turning to Petitioners’ application for removal of certain school board members and school officers, the Commissioner explained that "A member of the board of education or a school officer may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education." 

In the words of the Commissioner, " ... [P]etitioner has not proven a violation of Education Law §3811 or any other act pertaining to common schools, let alone a willful violation of such laws" and denied Petitioner's application for such removals.

Noting the "multiplicity of appeals and applications" filed by Petitioner over a short period of time, the Commissioner observed that "Although [Petitioner] retains a right to commence proceedings under Education Law §310 and Education Law §306, I caution [Petitioner] that such proceedings should not be used to harass school district officers or employees.  Additionally, I remind [Petitioner] that he bears the burden of proving any alleged wrongdoing and that an appeal pursuant to Education Law §310 or an application for removal under Education Law §306 will not succeed on bald assertions alone."

* The Commissioner explained that while Petitioner timely commenced the fourth proceeding within 30 days of the board’s December 19, 2019 vote, his challenges to the three earlier votes must be dismissed as untimely.

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