Can a New York town or village provide legal defense and indemnification for officers of a joint fire district under Public Officers Law section 18?

Plain-English summary

The Town of Ellicottville asked whether it could pay the legal defense and indemnification costs of commissioners of a joint fire district formed by the Town and the Village of Ellicottville. The AG's office answered that the joint fire district itself was the right payer, not the constituent town or village.

Public Officers Law § 18 lets a "public entity" elect to defend and indemnify its officers, and a joint fire district qualified as a public entity. POL § 18(2)(b) lets a municipality assume that obligation for entities formed for the municipality's benefit, the way the office had previously held could be done for industrial development agencies (90-41) and soil and water conservation districts (96-F6). A joint fire district was different: it was formed to benefit specific property within the district, not the towns or villages that created it. The cost of defense and indemnification therefore had to be paid by the district as a charge on the property within its boundaries.

Currency note

This opinion was issued in 1996. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What is "Public Officers Law section 18"? A: It is the statute that lets a New York public entity choose to defend and indemnify its officers and employees against civil claims arising from acts or omissions within the scope of their public employment.

Q: Why couldn't the municipalities just step in? A: POL § 18(2)(b) allowed a municipality to do so only for a public entity formed for the municipality's benefit. The opinion concluded a joint fire district was formed to benefit the property and property owners within the district itself, not the constituent town or village, so the municipal-funding hook in § 18(2)(b) did not reach it.

Q: Did the joint fire district have to use POL § 18? A: No. The commissioners had to formally elect to confer the section's benefits on the district's officers and employees and accept responsibility for the costs. The district could also self-insure or purchase insurance from a New York-authorized insurer under § 18(8).

Q: Who paid the cost when the district chose to defend and indemnify? A: The expense became a district charge against property within the district's boundaries, paid by the same property owners who received the district's fire-protection services.

Q: How did the AG distinguish industrial development agencies and soil and water conservation districts? A: State law expressly says IDAs are established "for the benefit of … the municipality" (General Municipal Law § 856(1)(a)) and that conservation districts address county-wide public concerns (Soil and Water Conservation Districts Law § 5). No equivalent municipal-benefit language appears in the joint fire district statutes (Town Law §§ 189-a(2)(d), 171).

Background and statutory framework

A joint fire district is created by joint action of one or more towns and one or more villages under Town Law § 189-a and related provisions. It is a "district corporation" under General Construction Law § 66: a territorial division with the power to contract debt and levy taxes or benefit assessments on real estate.

POL § 18(1)(a) defines "public entity" broadly to include counties, cities, towns, villages, and "any other political subdivision or civil division of the state … or … any other separate corporate instrumentality or unit of government." The joint fire district fit within that definition. The breadth of the public-entity definition was therefore not the limiting factor. What controlled was POL § 18(2)(b)'s "for whose benefit" language, which the AG read narrowly: a town or village could only step in for a public entity that benefited the town or village, not for one that benefited specific property within the district.

Citations and references

Statutes:

• N.Y. Public Officers Law § 18 (defense and indemnification of public-entity officers)
• N.Y. General Construction Law § 66 (district corporation defined)
• N.Y. General Municipal Law § 856 (industrial development agencies)
• N.Y. Town Law § 189-a (joint fire districts)
• N.Y. Soil and Water Conservation Districts Law § 5

Prior AG opinions:

• Op Atty Gen No. 96-F6 (municipality may indemnify soil and water conservation district officers)
• Op Atty Gen (Inf) No. 90-41 (municipality may indemnify industrial development agency officers)

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_96-32_pw.pdf

Original opinion text

GENERAL CONSTRUCTION LAW § 66; GENERAL MUNICIPAL LAW § 856(1)(a); PUBLIC OFFICERS LAW § 18; SOIL AND WATER CONSERVATION DISTRICTS LAW § 5; TOWN LAW §§ 171, 176(18) and (27), 189-a(2)(d). A joint fire district is a public entity which can provide for the defense and indemnification of its officers and employees in accordance with section 18 of the Public Officers Law. Since a joint fire district is formed for the benefit of property included within the district and not the municipalities, there is no authority under section 18 for provision of defense and indemnification by the municipalities. September 19, 1996 Thomas C. Brady, Esq. Town Attorney Town of Ellicottville P. O. Box 227 Salamanca, NY 14779-0227

Informal Opinion
No. 96-32

Dear Mr. Brady:
You have asked whether the Town of Ellicottville may provide defense and indemnification to commissioners of a joint fire district formed by the Town and the Village of Ellicottville. You have referred to Op Atty Gen No. 96-F6 (see also, Op Atty Gen
[Inf] No. 90-41), where we applied provisions of section 18 of the Public Officers Law authorizing the governing body of a municipality for whose benefit a public entity has been established, to provide at municipal expense for the defense and indemnification of officers and employees of the public entity. See, Public Officers Law § 18(2)(b). As indicated in our 1990 opinion, this provision authorizes a municipality to agree to defend and indemnify a public entity formed for its benefit. We do not believe, however, that a joint fire district falls within these particular provisions of section 18. It is distinguishable from the public entities examined in the above two opinions. We note that a joint fire district falls within the definition of "public entity" used in section 18 of the Public Officers Law. A joint fire district is a "district corporation", defined as any territorial division of the state, other than a municipal corporation, heretofore or hereafter established by law which possesses the power to contract indebtedness and levy taxes or benefit assessments upon real estate

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or to require the levy of such taxes or assessments, whether or not such territorial division is expressly declared to be a body corporate and politic by the statute creating or authorizing the creation of such territorial division. General Construction Law § 66; see, Town Law §§ 189-a(2)(d), 176(18), (27). Under section 18 the term "public entity" is defined broadly to mean a county, city, town, village "or any other political subdivision or civil division of the state . . . or . . . any other separate corporate instrumentality or unit of government". Public Officers Law § 18(1)(a). We believe a fire district or joint fire district falls within this definition. A joint fire district, however, is formed to benefit certain property included in the town(s) and village(s) that are included within the boundaries of the district. Town Law §§ 189-a(2)(d),

171. Thus, a joint fire district is not a public entity that has
     been established for the benefit of the municipalities. It has been established to benefit particular property and property owners included within the joint district. It follows that the municipalities may not confer the benefits of section 18 at municipal expense upon the officers and employees of the joint fire district. A joint fire district is distinguishable from an industrial development agency and a soil and water conservation district, examined in Op Atty Gen (Inf) No. 90-41 and Op Atty Gen No. 96-F6. State law specifically provides that those public entities are formed for the benefit of the municipality. Industrial development agencies are established for the benefit of "the governing body of the municipality". General Municipal Law § 856(1)(a). Soil and water conservation districts are created upon a finding by the county's legislative body that conservation of soil and water resources, control and prevention of soil erosion and prevention of flood water and sediment damages are problems of public concern in the county. Soil and Water Conservation Districts Law § 5. Under section 18, however, a joint fire district as a public entity, can itself provide for defense and indemnification of its officers and employees. The provisions of section 18 apply to any public entity whose governing body elects to confer the section's benefits upon its officers and employees and to be held responsible for the costs incurred. Public Officers Law
     § 18(2)(a). The commissioners of a joint fire district may apply section 18 to the district.

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Upon compliance by officers and employees of the joint fire district with the procedural requirements of section 18, the district would be responsible for their defense in any civil action or proceeding, State or Federal, arising out of an alleged act or omission which occurred or allegedly occurred while they were acting within the scope of their public employment or duties. Id., § 18(3)(a). The joint fire district also would have responsibility for indemnifying and saving harmless its officers and employees in the amount of any judgment, in any State or Federal court, or in the amount of any settled claim, provided that the act or omission from which the judgment or settlement arose occurred while they were acting within the scope of their public employment or duties. Id., § 18(4)(a). Settlements must be approved by the commissioners of the joint fire district. Id. The expense of defense and indemnification would be a district charge against property included within the district and, therefore, would be paid by persons receiving the benefits of the district. The joint fire district is authorized to purchase insurance from any insurance company created by or under the laws of the State or authorized to do business in this State against any liability imposed by section 18 or it may act as a self-insurer. Id., § 18(8). We conclude that a joint fire district is a public entity which can provide for the defense and indemnification of its officers and employees in accordance with section 18 of the Public Officers Law. In that a joint fire district is formed for the benefit of property included within the district and not to benefit the municipalities, there is no authority under section 18 for provision of defense and indemnification by the municipalities.

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The Attorney General renders formal opinions only to officers and departments of State government. This perforce is an informal and unofficial expression of the views of this office. Very truly yours,

JAMES D. COLE
Assistant Attorney General
in Charge of Opinions