August 16, 2022

Employee's request that his employer provide for his defense and indemnification in a civil action denied as the underlying act was beyond the scope of his employment

In this appeal to Commissioner of Education Betty A. Rosa, a former teacher [Educator] contended that the Board of Education of his former employer, a school district, should have granted his request for defense and indemnification with respect to a civil action initiated by a former student alleging, among other things, that Educator had sexually assaulted her while she was a student at the school district’s high school. 

Addressing the merits Educator's argument, the Commissioner Rosa said that Education Law §3811 identifies the circumstances under which a school district is required to defend and indemnify “member[s] of the teaching or supervisory staff” in civil “actions or proceedings.” Defense and indemnification, opined the Dr. Rosa, is only available if the alleged conduct arose out of the “exercise of [a teacher's] powers or the performance of [his or her] duties,” a phrase equivalent to the term “scope of employment.”

Citing N.X. v Cabrini Med. Ctr., 97 NY2d 247 and other decisions, the Commissioner noted that New York State's Court of Appeals has unambiguously held that sexual assault perpetrated by an employee is a “clear departure from the scope of employment, having been committed for wholly personal motives”. Thus, opined Commissioner Rosa, the Board of Education "appropriately denied [Educator's] request that the school district defend him against allegations of sexual assault."

The Commissioner also noted that "[t]he record does not reveal whether [the Board of Education had] adopted the protections of Public Officers Law §18" but concluding that this would not affect the outcome of this appeal as Public Officers Law §18(3)(a) imposes an identical “scope of employment” requirement, citing Matter of Dreyer v City of Saratoga Springs, 43 AD3d 586.

Click HERE to access the Commissioner's decision. 

 

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