The Village Board of Trustees [Board] commenced a CPLR Article 78 proceeding to compel the Mayor of the Village [Mayor] to perform certain official duties. In his answer, Mayor sought a judgment declaring that he is entitled to separate counsel in this proceeding with reasonable fees to be paid by the Village. Supreme Court granted Mayor's counterclaim, declaring that Mayor was entitled to separate counsel in this proceeding, with reasonable fees to be paid by the Village. The Board appealed.
The Appellate Division held that Supreme Court properly declared that Mayor was entitled to separate representation in this proceeding without the requirement that he first comply with the procedures outlined in the Code of the Village relating to defense and indemnification of Village employees.
The Appellate Division conceded that an attorney generally may not be compensated for services rendered to a municipal officer, even if for the benefit of the municipality, unless the attorney has been retained in accordance with statutory authority. However, opined the court, "[n]otwithstanding lack of specific statutory authority, a municipal ... officer possesses implied authority to employ counsel in the good faith prosecution or defense of an action undertaken in the public interest, and in conjunction with ... his official duties where the municipal attorney ... was disqualified from ... acting", citing Cahn v Town of Huntington , 29 NY2d 451, among other decisions.
In this instance, the Village attorney was unable to represent Mayor due to a conflict of interest as he was representing the Board in the matter. Thus, said the court, Mayor was entitled to engage counsel who did not have a conflict of interest. Further, noted the Appellate Division, Board acknowledged as much when it approved of retention of "conflict counsel" for Mayor prior to the commencement of this proceeding when it became apparent that Mayor was taking a position contrary to the Board's.
The Appellate Division then observed, "As the Supreme Court properly determined, the amount the Village pays for [Mayor's] separate counsel shall depend upon [Mayor's] submission, and the Village's approval, of a claim for reasonable fees."
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