Can a town attorney represent a town judge in a grievance proceeding before the New York State Commission on Judicial Conduct?

Subject

Section 18 of Public Officers Law does not authorize representation before Commission on Judicial Conduct; Defense and indemnification of a town judge in a grievance proceeding before the Commission on Judicial Conduct.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_96-36_pw.pdf

Plain-English summary

The Stony Point town attorney asked whether he could represent a town justice who had a grievance pending before the State Commission on Judicial Conduct. Stony Point provides defense and indemnification to its officers and employees solely under Public Officers Law § 18, a local-option statute.

The AG concluded that § 18 does not reach this kind of proceeding. The statute's duty to defend (§ 18(3)(a)) covers "any civil action or proceeding, state or federal." Reading that phrase against § 18(4)(a), which limits the duty to indemnify to judgments or settlements "in a state or federal court," the AG held that the duty to defend likewise applies only to court proceedings. A Commission on Judicial Conduct grievance is an administrative disciplinary proceeding, not a State or Federal court action, so it falls outside the statute. The AG also pointed to § 18's legislative history: the Law Revision Commission modeled § 18 on Public Officers Law § 17, which defends State officers and employees, and that statute's defense duty is limited the same way.

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

What is Public Officers Law § 18?
Section 18 is a "local option" defense and indemnification statute. A county, city, town, village, or other local government can adopt it by resolution or local law, after which the local government must defend its employees in covered civil actions and pay any resulting judgment or settlement, so long as the act in question was within the scope of employment.

Why didn't § 18 reach a judicial-conduct grievance?
Because the statute's text limits the defense duty to civil actions or proceedings in a state or federal court, and the indemnification duty to judgments or settlements in state or federal court. The Commission on Judicial Conduct is a state disciplinary body that conducts its own administrative process; cases before it are not "in" any court within the meaning of § 18.

What if Stony Point also had a local defense law?
The AG noted that under § 18(12) a local government can preserve or supplement a separately enacted local defense law alongside § 18. Stony Point used § 18 alone, so the AG examined only that statute for authority. The opinion does not evaluate a separate local defense law.

Background and statutory framework

Public Officers Law § 18 provides a local-option defense and indemnification scheme. Once selected, it replaces other legislative defense provisions unless the local governing body preserves them or makes § 18 supplemental. Stony Point had chosen to rely solely on § 18.

The AG read § 18’s defense duty together with its court-limited indemnification duty and with § 17, the State-employee provision on which § 18 was modeled. It concluded that § 18 did not authorize the town attorney to represent a judge in a Commission on Judicial Conduct grievance. The opinion does not address the judge’s other possible representation or funding options. See the original opinion.

Citations

• Public Officers Law § 18 (defense and indemnification of employees of local governments; local option)
• Public Officers Law § 17 (defense and indemnification of State employees)
• Coker v City of Schenectady, 200 AD2d 250 (3d Dept 1994), app dismissed, 84 NY2d 1027 (1995)
• Corning v Village of Laurel Hollow, 64 AD2d 918 (2d Dept 1978), affd, 48 NY2d 348 (1979)

Original opinion text

Opn. No. 96-36
PUBLIC OFFICERS LAW § 18.
Section 18 of the Public Officers Law does not provide authority for representation of a town judge by the town attorney in a grievance proceeding before the Commission on Judicial Conduct. September 30, 1996 Frank J. Phillips, Esq. Informal Opinion Town Attorney No. 96-36 Town of Stony Point 50 Route 9W, Monte Plaza Stony Point, NY 10980 Dear Mr. Phillips: You have asked whether a town attorney may provide legal representation to a town judge in a grievance brought before the Commission on Judicial Conduct. You have informed us that your town provides defense and indemnification to town officials under the provisions of section 18 of the Public Officers Law. Section 18 provides a scheme for defense and indemnification of public employees upon an affirmative decision by a local government to utilize its provisions. Public Officers Law § 18(2). Once section 18 is selected through local option, it takes the place of defense and indemnification provided to the local government's employees by another legislative enactment unless the local government's governing body provides that the benefits of section 18 will supplement, rather than replace other defense and indemnification provisions. Id., § 18(12). If other provisions are not specifically preserved or applied, however, section 18 will fully replace them. Coker v City of Schenectady, 200 AD2d 250 (3d Dept 1994), app dismissed, 84 NY2d 1027 (1995). Thus, a local government that has enacted a local law (see, Corning v Village of Laurel Hollow, 64 AD2d 918 [2d Dept 1978], affd, 48 NY2d 348 [1979]) providing for defense and indemnification of its officers and employees may instead elect to apply the provisions of section 18 solely, continue to provide for defense and indemnification under the local law, or supplement the local law with the provisions of section 18. You have informed us that your town provides defense and indemnification to its officers and employees solely under section 18 of the Public Officers Law. We need not look beyond section 18, then, for authority to provide the representation.

Under section 18, upon compliance by the employee with the requirements of the provision, the local government provides defense of the employee

in any civil action or proceeding, state or federal, arising out of any alleged act or omission which occurred or allegedly occurred while the employee was acting within the scope of his public employment or duties.

Public Officers Law § 18(3)(a). The local government must

indemnify and save harmless its employees in the amount of any judgment obtained against such employees in a state or federal court, or in the amount of any settlement of a claim, provided that the act or omission from which such judgment or claim arose occurred while the employee was acting within the scope of his public employment or duties.

Id., § 18(4)(a).

It seems clear under these provisions that the duty to defend and indemnify local employees only applies to civil actions or proceedings in a State or Federal court. While the duty to defend under section 18(3) (a) applies to any civil action or proceeding, State or Federal, we believe that the defense duty applies to those actions or proceedings only in State or Federal court. In our view, the duty to defend is not broader than the duty to indemnify which specifically is limited to actions or proceedings in State or Federal court. Section 18 was a proposal of the New York Law Revision Commission, which modeled its proposal on section 17 of the Public Officers Law, providing defense and indemnification to State officers and employees. Under section 17, the duty to defend applies to civil actions or proceedings in any State or Federal court. Thus, the legislative history indicates that the duty to defend under section 18 was not intended to be broader than the State's obligation under section 17. The defense of a judge, therefore, in a grievance proceeding brought before the Commission on Judicial Conduct is outside the provisions of section 18. We conclude that section 18 of the Public Officers Law does not provide authority for representation of a town judge by the town attorney in a grievance proceeding before the Commission on Judicial Conduct. 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

1 New York Law Revision Commission, Memorandum Relating to Indemnification and Defense of Public Officers and Employees, 204th Assembly, Reg. Sess. (1981), reprinted in 1981 NY Laws 2314, 2315.