Providing legal representation and indemnification of State officers and employees

Providing legal representation and indemnification of State officers and employees
Samuels v Vacco, Appellate Division, 251 AD2s 10

Section 17 of the Public Officers Law provides that a state officer or employee is entitled to representation by the Attorney General if the individual is sued as a result of his or her performing official duties. Under certain conditions, the individual may be entitled to be represented by a private attorney rather than by the Attorney General.*

Section 17 provides for representation and indemnification only in a civil action or proceeding in state or federal court arising out of any alleged act or omission which occurred while the individual was acting within the scope of his or her public employment.

David G. Samuels was named as a defendant in a civil rights action brought pursuant to 42 USC 1983. He decided that he preferred to be represented by his own, private, counsel rather than by the Attorney General but wanted the Attorney General to pay his legal fees. When the Attorney General declined to reimburse him for his legal fees if Samuels employed private counsel, Samuels sued.

The Appellate Division rejected Samuels’ petition. The court said Samuels did not allege that he was acting outside the scope of his employment and thus “there was never any possibility that [he] would be held liable for unreimbursable damages, either compensatory or punitive.”

Would it be possible for the individual to claim he or she was acting “outside the scope of his or her employment,” in an effort to obtain private counsel?

Surely, but such a representation would constitute an admission such that the provisions set out in Section 17 are not triggered and the Attorney General would be under no obligation to pay the individual’s attorney’s fees nor would the State be liable to reimburse the individual for any damages won by the plaintiff.

Are there any circumstances under which an officer or employee may claim that he or she is entitled to representation by private counsel in lawsuits connected with the performance of official duties?

Yes: when the Attorney General, or a court, determines that such representation would be appropriate or because there is an actual or potential conflict of interest. Under such circumstances the individual is entitled to be represented by private counsel and the State is required to pay the individual’s “reasonable attorneys’ fees and litigation expenses” and any damages for which the individual may be held liable.

* Section 18 of the Public Officers Law authorizes political subdivisions of the State to provide for the “defense and indemnification” of officers and employees sued in connection with the performance of their official duties.

A request seeking permission to delay filing an appeal with the Commissioner of Education must be timely filed

A request seeking permission to delay filing an appeal with the Commissioner of Education must be timely filed
M.H. v Santiago Taveras, Interim-Acting Deputy Chancellor for Teaching and Learning of the New York City Department of Education, Decisions of the Commissioner of Education, Decision No. 16,097

M.H., a tenured New York City teacher, appealed the denial of her objections to unsatisfactory performance ratings by the Interim-Acting Deputy Chancellor to the Commissioner of Education.

Rejecting M.H.’s appeal as untimely notwithstanding the representation that the delay in filing the appeal was due to personal illness, the Commissioner explained:

1. An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of unless any delay is excused by the Commissioner for good cause shown and to be timely, a request to have the delay excused must be commenced within 30 days of receiving the administrative determination.

2. When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays.

3. Neither illness nor ignorance of the appeal process is a valid excuse for the late commencement of an appeal.

The decision is posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume50/d16097.htm

Canceling COBRA coverage

Canceling COBRA coverage
Geissal v Moore Medical Corp., USSC, 524 U.S. 74

If an employer discovers that an individual participating in its health insurance plan under COBRA is also covered as a dependent under a different health insurance plan, may it cancel his or her coverage?

It all depends on the date on which the individual’s coverage as a dependent in the other plan took effect.

According the United States Supreme Court’s ruling in the Geissal case, the employer may not cancel its coverage if the individual was covered as a dependent under the other plan before he or she made the COBRA election.

The court noted that 29 USC 1162(2)(D)(i) allows the employer to cancel an individual’s COBRA participation in its health plan only if the individual became covered as a dependent in the other plan after making his or her COBRA election and then only if the new plan does not exclude “pre-existing conditions.”

The Geissal case involved an employee who was covered under both his employer’s health insurance plan and as a dependent under his spouse’s health insurance plan at the time he was terminated from employment and made a timely election to continue in the employer’s group health plan as provided by COBRA.

The fact that both plans provided similar coverages was held irrelevant. The high court decided that because Geissal was covered by his wife’s policy as a dependent before he elected COBRA, his former employer could not cut off his participation in its plan even though the benefits in both plans were essentially the same.

In other cases involving the discontinuation of COBRA coverage by employers on the basis of “alternate coverage as a dependent,” some U.S. Circuit Courts of Appeal had applied a “significant gap” test. These courts held that continued coverage under COBRA was available to an eligible employee only if there was a “significant gap” between the individual’s COBRA benefits and the benefits available to the individual under his or her spouse’s plan. Eligibility for continuation of COBRA coverage based on such a distinction was rejected by the Supreme Court.