When an officer or employee [Employee] of the federal government is sued for alleged tortious conduct, the Employee is generally entitled to absolute immunity from personal liability under the Federal Employees Liability Reform and Tort Compensation Act of 1988 [the “Westfall Act]. However, to be eligible to come with the ambit of the Westfall Act the Employee must prove two things:
"(1) That the Employee is a qualifying government official for purposes of the Westfall Act; and
"2) That the tortious conduct in which the Employee was allegedly engaged was within the scope of the Employee's employment."
If these requirements are met, the United States is substituted for the Employee as the sole defendant in the tort suit and the action proceeds against the United States in accordance with the rules set forth in the Federal Tort Claims Act.**
That said, the Second Circuit held that the instant action, E. Jean Carroll v. Donald J. Trump, required it to determine whether "the President of the United States is eligible for this form of absolute immunity."
With respect to New York State as the employer, §17 of the Public Officers Law provides for the defense and indemnification of state officers and employees and volunteer expressly authorized to participate in a state-sponsored volunteer program, a former employee, his estate or judicially appointed personal representative and persons who assist the education department or the department of health as consultants or expert witnesses in the investigation or prosecution of alleged professional misconduct, licensure matters, restoration proceedings, or criminal prosecutions for unauthorized practice pursuant to Title eight of the Education Law or Title II-A of the Public Health Law.
Further, §18 of the Public Officers Law provides for the defense and indemnification of officers and employees of public entities whose governing body has agreed by the adoption of local law, by-law, resolution, rule or regulation (i) to confer the benefits of §18 upon its employees, and (ii) to be held liable for the costs incurred under these provisions or where the governing body of a municipality, for whose benefit the public entity has been established, has agreed by the adoption of local law or resolution (i) to confer the benefits of §18 upon the employees of such public entity, and (ii) to be held liable for the costs incurred under these provisions.
§19 of the Public Offices Law provides for the reimbursement of defense costs incurred by or on behalf of a state 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 the employee's public employment or duties upon the employee's acquittal or upon the dismissal of the criminal charges against employee or reasonable attorneys' fees incurred in connection with the employee's 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 the employee's public employment or duties unless such appearance occurs in the normal course of the public employment or duties of such employee.
* See 28 U.S.C. §2679(b)(1).
** See 28 U.S.C. §§2679(d)(1), 1346(b)(1).
*** Although not all state employee are state public officers, all state public officers are state public employees.
Click HEREto access the text of the Second Circuit United States Court of Appeals' ruling in this action.
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