Can a New York county attorney represent a county official who wants to sue someone for defamation arising from their county work?

Plain-English summary

Tompkins County's airport manager discovered that a private security firm under contract with the county had hired a convicted felon as an airport security officer. The manager flagged it; the security firm fired the employee for lying on his application. The fired employee then started producing defamatory content about the airport manager on a public-access TV program. The defamatory statements were not strictly about the manager's county employment (the program alleged immoral acts), but the dispute originated in his county work. The county attorney asked whether the county could sue the alleged defamer on the airport manager's behalf, using the county attorney as plaintiff's counsel.

The AG said no. County Law § 501 makes the county attorney the legal advisor to the county legislative body and county-funded officers in matters involving official acts of a civil nature, and tasks the county attorney with prosecuting and defending all civil actions and proceedings brought by or against the county, its legislative body, or any county-funded officer "for any official act." The AG read that authority as limited to enforcement of official actions and defense of official actions, not to bringing personal defamation suits for vindication of an individual's reputation.

The Court of Appeals' decision in Corning v Village of Laurel Hollow reinforced the conclusion. Corning held that, absent a pre-existing local law providing for it, a municipality cannot pay former village officials' legal fees for their successful defense against a civil rights action arising from their official conduct. The Court treated that as a gift of public funds for a private purpose, prohibited by NY Const Art VIII, § 1. The Court qualified the holding by saying a municipality may enact prospective legislation providing for defense of officials in actions arising from their duties (the cost is treated as additional remuneration), but reimbursement of personal litigation expenses without enabling legislation is unconstitutional.

The AG concluded that representing a county official as a plaintiff in a defamation action falls outside § 501. The county would essentially be paying for a private benefit (vindicating the manager's personal reputation) without statutory authority, raising the same gift-of-public-funds problem.

Currency note

This opinion was issued in 1997. 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 does "official act" mean in County Law § 501?

The AG read it as actions taken by the officer in their official county capacity, where the underlying litigation involves enforcement or defense of those official actions. An example is suing on behalf of the county to enforce a local law. The plain-language scope of § 501 is reactive (defending the county and its officers against suits) and enforcement-oriented (prosecuting cases the county brings on official matters).

Could the manager still pursue defamation on his own?

Yes. The opinion does not bar the airport manager from hiring private counsel and bringing a defamation action himself. It only addresses whether county funds may be used for that purpose via the county attorney's representation.

Could the county pass a local law to cover the manager's defamation costs?

The Corning decision opens that door for defense costs of suits brought against the official in their official capacity, treating prospective enabling legislation as constitutional. The opinion does not address whether prospective enabling legislation would also cover litigation initiated by the official, and the constitutional gift-of-funds problem might apply differently in that situation. Local counsel should consult Corning's framework carefully.

Does the airport manager have any related remedies under existing law?

If the defamatory statements relate to the manager's exercise of public duties, he may have a state-law defamation claim with the usual New York elements (false statement, publication, fault, and damages or per se categories). Public officials face elevated First Amendment standards (actual malice) for statements about their official conduct. The opinion does not analyze these substantive doctrines.

What about Public Officers Law § 18 or § 17 for related fact patterns?

Public Officers Law § 17 covers defense and indemnification of state employees. Section 18 provides a defense and indemnification framework for local-government employees on an opt-in basis. Those statutes are oriented toward defending officials sued for their official acts. They do not provide a vehicle for offensive litigation by the official.

Background and statutory framework

County Law § 501 establishes the office of county attorney and assigns responsibility for being the legal advisor to the county legislative body and every county-funded officer in matters involving official acts. The county attorney prosecutes and defends civil actions and proceedings "for any official act."

NY Const Art VIII, § 1 prohibits gifts or loans of money or credit of any local government to or in aid of any individual, private corporation, or private association, or undertaking.

Corning v Village of Laurel Hollow, 48 NY2d 348 (1979), held that absent pre-existing enabling legislation, a municipality cannot reimburse a public official's defense costs because doing so is a gift of public funds for a private purpose. The Court qualified the holding by recognizing that municipalities may enact prospective legislation providing defense for officials charged with violations in the performance of their duties; the cost is treated as additional remuneration.

Matter of Chapman v City of New York, 168 NY 80 (1901), is the older line of authority on the personal-burden of self-defense by public officials.

Citations

• NY Const Art VIII, § 1 (prohibition on gifts of public funds).
• County Law § 501 (county attorney's representation authority for official-act matters).
• Corning v Village of Laurel Hollow, 48 NY2d 348 (1979) (no reimbursement without enabling legislation; prospective legislation permissible).
• Matter of Chapman v City of New York, 168 NY 80 (1901) (officers traditionally bear personal cost of defending against misconduct charges).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_97-20_pw.pdf

Original opinion text

NY CONST, ART VIII, § 1; COUNTY LAW § 501; PUBLIC OFFICERS LAW
§ 18.
Section 501 of the County Law does not authorize the county attorney to represent a county official as a plaintiff in a defamation of character action. April 29, 1997 Henry W. Theisen, Esq. County Attorney County of Tompkins 125 East Court Street Ithaca, NY 14850

Informal Opinion
No. 97-20

Dear Mr. Theisen:
You have asked whether a county, using the county attorney, may sue on behalf of a county official for defamation of character where the official has been defamed by an individual on a local television program produced on the public access channel. You have explained that the county official in question, the airport manager, discovered that a private security firm under contract with the county had hired a convicted felon as an airport security officer. The manager informed the security firm, which then fired the employee, who apparently had lied on his employment application. You state that as a result of this action by the airport manager, he has been subject to defamatory programming on a public access television station produced by the fired individual. Further, you indicate that the defamatory statements do not relate to the airport manager's county employment but allege that he engages in immoral acts. You believe, however, that the attack on the county employee was the result of his performance of duties on behalf of the county. Under provisions of the County Law, the county attorney is the legal advisor to the county legislative body and to every officer whose compensation is paid from county funds in all matters involving an official act of a civil nature. County Law
§ 501. It is the county attorney's responsibility to prosecute and defend all civil actions and proceedings brought by or against the county, its legislative body and any officer whose compensation is paid from county funds, for any official act. Id. In our view, the above provisions of the County Law do not authorize the county attorney to represent a county official as a plaintiff in a defamation of character action. Section 501 of

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the County Law gives the county attorney the duty to prosecute and defend all civil actions and proceedings brought by or against any county officer whose compensation is paid from county funds, "for any official act". We believe that this provision is limited to matters such as enforcement of official actions taken by a county officer on behalf of the county and its residents. An example is litigation brought by a county official on behalf of the county to enforce a local law. Representation of the subject official as a plaintiff in a defamation action does not, in our view, fall within section 501 of the County Law. The Court of Appeals has noted that without legal authority, a municipality may not assist a public official in defense of a civil action or proceeding brought against that official even where the actions forming the basis for the litigation fall within his or her employment. One of the risks traditionally associated with the assumption of public office is that of defending oneself against charges of misconduct at one's own expense (Matter of Chapman v City of New York, 168 NY 80, 85-86). The public owes no duty to defend or even aid in the defense of such a charge. As was said in Matter of Chapman (supra), at p 86): "Whoever lives in a country governed by law assumes the risk of having to defend himself without aid from the public, against even unjust attempts to enforce the law, the same as he assumes the burden of taxation . . . Asking for aid to pay the expenses of a defense already made from one's own resources, is like asking for aid in the payment of taxes or the discharge of any public burden. It is not a city or county purpose, but a mere gift" (see, also, Leo v Barnett, supra; Buckle v City of New York, 289 NY 742, affg 264 App Div 116; Matter of Guarino v Anderson, supra; Matter of Kilroe v Craig, 238 NY 628, affg 208 App Div 93; 17 Opns St Comp, 1961, p 125; 12 Opns St Comp, 1956, p 479). Corning v Village of Laurel Hollow, 48 NY2d 348, 353 (1979). The Court of Appeals proceeded to indicate that a municipality may enact local legislation providing for legal representation of

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its officials on a prospective basis.
the Public Officers Law.)

(See also, section 18 of

This is not to question the power of the municipality to enact an ordinance empowering it to defend its officials who in the future may be charged with violating the law in the performance of their duties. Such a considered policy decision would raise no constitutional objections, for the cost of the defense would simply be considered additional remuneration (Matter of Guarino v Anderson, supra, at pp 95-96; Mater of Duel v Gaynor, 141 App Div 630, 631-632). But plaintiffs point to no statute or ordinance empowering the village, in the discretion of its governing body, to assume the responsibility of their defense. Rather, they seek an order declaring that the village must reimburse them for expenses previously incurred--expenses which vindicated their interests alone. It is precisely this result which our Constitution prohibits. Corning v Village of Laurel Hollow, 48 NY2d 348, 354, supra; emphasis added. Thus, without existing enabling legislation, a municipality may not provide legal representation to an employee. We conclude that section 501 of the County Law does not authorize the county attorney to represent a county official as a plaintiff in a defamation of character action. 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