If a volunteer fire chief or assistant chief is sued for sex discrimination at the State Division of Human Rights, does the village have to pay for their lawyer under Public Officers Law § 18?

Plain-English summary

The Village of South Corning's volunteer fire chief and assistant chief were named in a sex discrimination complaint filed at the New York State Division of Human Rights by a department member. The village attorney asked whether the village was obligated to provide their defense under Public Officers Law § 18 (or under a local law if it had one in effect).

The AG split the analysis. On § 18 itself, the answer was no. Section 18 is a local option: a local government adopts it to provide defense and indemnification for its employees. Once adopted, § 18 either replaces or supplements (depending on the local government's choice) any other defense and indemnification provisions. Coker v City of Schenectady held that if the other provisions are not specifically preserved, § 18 fully replaces them.

The substantive scope of § 18, however, is limited. Section 18(3)(a) covers defense "in any civil action or proceeding, state or federal," arising from in-scope acts. Section 18(4)(a) covers indemnification of judgments and settlements obtained "in a state or federal court." Read together, both the duty to defend and the duty to indemnify are limited to court proceedings. The AG noted that § 18 was modeled on § 17 (which similarly applies to "civil actions or proceedings in any state or federal court"), and the legislative history shows § 18 was not intended to be broader. A Division of Human Rights proceeding is an administrative proceeding, not a court proceeding. So § 18 does not require defense there.

But that does not end the analysis. The village may enact a prospective local law providing for defense in Division of Human Rights cases. Under NY Const Art IX, § 2(c)(i) and (ii)(1), local governments have authority to adopt local laws on their property, affairs, or government and on the terms and conditions of employment. Defense and indemnification fall within those grants (Corning v Village of Laurel Hollow). Such legislation must be prospective and must connect the defense to in-scope acts (otherwise it would be a gift of public funds for a private purpose, prohibited by NY Const Art VIII, § 1). The Court of Appeals in Corning approved prospective enabling legislation, treating the defense cost as additional remuneration for employment, not a gift.

The AG concluded that, if it chooses, the village can enact a local law providing on a prospective basis for defense costs in Division of Human Rights proceedings, conditioned on (1) the employee acting within the scope of duties and (2) acquittal of the discrimination charges. Without that local law, the village has no obligation to provide defense in the Division of Human Rights proceeding.

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 kind of proceeding is a Division of Human Rights complaint?

The New York State Division of Human Rights enforces the Human Rights Law. A complaint is investigated, can be the subject of public hearings, and can lead to administrative orders. The DHR is an administrative agency, not a court. Decisions can be reviewed by the Article 78 process in state court, which would be a court proceeding and therefore covered by § 18.

Why are administrative proceedings excluded from § 18?

The AG read § 18's text as deliberately keyed to civil actions or proceedings "in court." The Legislature modeled § 18 on § 17 (state employees), which uses the same court-bound formulation. The Law Revision Commission proposal that became § 18 did not signal an intent to broaden coverage to administrative tribunals.

How would a village-level local law work in practice?

The village would adopt a local law specifying which proceedings are covered (e.g., Division of Human Rights), which officers and employees are covered, what scope-of-duty test applies, what triggers payment (e.g., acquittal of discrimination charges), and procedural requirements (notice to the village, claim management, etc.). Drafting needs to respect the Constitution's no-gift-of-funds rule, the home-rule scope, and existing § 18 election.

What if § 18 was adopted but the village wants to supplement it for DHR proceedings?

Section 18(12) allows a local government to choose whether § 18 replaces or supplements other provisions. The village can adopt a local law supplementing § 18 with DHR coverage, but must explicitly preserve both schemes if it wants both to apply. Otherwise Coker treats § 18 as fully replacing the others.

Why the requirement of acquittal in the AG's discussion?

The AG suggests the acquittal requirement to keep the public funds expenditure tied to a finding that the official did not commit the discrimination. Without that linkage, paying defense costs for an official actually found liable for discrimination could be a gift of public funds for a purely private benefit. This mirrors the constitutional concern in Corning.

Background and statutory framework

Public Officers Law § 17 governs defense and indemnification of state employees. Public Officers Law § 18 establishes a parallel local-option scheme. A local government adopts § 18 by affirmative decision (§ 18(2)). Once adopted, § 18 either replaces or supplements other provisions (§ 18(12)). Coker v City of Schenectady, 200 AD2d 250 (3d Dept 1994), confirmed that other provisions not specifically preserved are replaced.

Section 18(3)(a) requires the local government to defend its employees "in any civil action or proceeding, state or federal" arising from in-scope acts. Section 18(4)(a) requires indemnification for judgments and settlements "in a state or federal court." The court-bound language limits both duties to court proceedings.

NY Const Art VIII, § 1 prohibits gifts or loans of public funds for private purposes. NY Const Art IX, § 2(c)(i) and (ii)(1) grant local governments home-rule authority over their property, affairs, or government and over terms and conditions of employment. Local laws providing defense and indemnification fall within those grants.

Corning v Village of Laurel Hollow, 48 NY2d 348 (1979), held that absent enabling legislation, a municipality cannot reimburse a public official's defense costs (treats as a gift). The Court approved prospective enabling legislation, treating defense costs as additional employment remuneration.

The Law Revision Commission's 1981 proposal that became § 18 modeled it on § 17.

Citations

• NY Const Art VIII, § 1; Art IX, § 2(c)(i), (ii)(1) (gift prohibition; home-rule authority).
• Public Officers Law § 17, § 18 (defense and indemnification framework for state and local employees, respectively); § 18(2) (local option); § 18(3)(a), § 18(4)(a) (court-bound scope); § 18(12) (replace vs supplement).
• Coker v City of Schenectady, 200 AD2d 250 (3d Dept 1994), appeal dismissed 84 NY2d 1027 (1995): § 18 fully replaces other defense provisions unless preserved.
• Corning v Village of Laurel Hollow, 64 AD2d 918 (2d Dept 1978), affd 48 NY2d 348 (1979): prospective enabling legislation permissible; no reimbursement without it.
• Matter of Chapman v City of New York, 168 NY 80 (1901): officers traditionally bear self-defense cost.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_97-24_pw.pdf

Original opinion text

Opn. No. 97-24
STATE CONSTITUTION, ART VIII, §1; ART IX, §2(C)(I) AND (II)(1); PUBLIC OFFICERS
LAW§§ 17,18.
May 2, 1997
Joseph P. Clark, Esq. Informal Opinion
Village Attorney No. 97-24
Village of South Corning
46 East Market Street
Corning, NY 14830
Dear Mr. Clark:
You have asked whether the village is obligated to provide legal defense of the chief and assistant chief
of its volunteer fire department in a sex discrimination proceeding against these officers filed with the
New York State Division of Human Rights by a member of the fire department.
You informed me that you are not sure whether the village has adopted section 18 of the Public Officers
Law as its authority for defense and indemnification or has authorized defense and indemnification by
local law. You have requested that we respond to your question covering both alternatives.
Section 18 of the Public Officers Law 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 provides that the benefits of section 18 will supplement, rather than replace these
other defense and indemnification provisions. Id. , § 18(12). If other provisions are not specifically
preserved or applied, section 18 will fully replace them. Coker v City of Schenectady , 200 AD2d 250
(3d Dept 1994), appeal dismissed , 84 NY2d 1027 (1995). Thus, a local government that has enacted a
local law providing for defense and indemnification of its officers and employees may instead elect to
apply solely the provisions of section 18, continue to provide for defense and indemnification under the
local law, or supplement the local law with provisions of section 18.
Under section 18 of the Public Officers Law, 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).

Under the above provisions, it seems clear 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 the
language of section 18(3)(a) applies to any civil action or proceeding, State or Federal, we believe the
duty applies to court actions or proceedings only. In our view, the duty to defend in section 18 parallels
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. 1 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.
Therefore, section 18 of the Public Officers Law does not authorize a municipality to provide for the
defense of one of its officers or employees in a sex discrimination complaint before the New York State
Division of Human Rights.
You have also asked that we consider the authority to provide for defense of the chief and assistant chief
by local law. Under the New York State Constitution, every local government is empowered to adopt
and amend local laws relating to its property, affairs, or government provided that the local laws are
consistent with the Constitution or any general State law. NY Const, Art IX, § 2(c)(i). Also, a local
government may enact local laws relating to the terms and conditions of employment of its employees.
Id. , § 2(c)(ii)(1). We believe that local laws providing for defense and indemnification generally fall
within these grants of authority. See , Corning v Village of Laurel Hollow , 64 AD2d 918 (2d Dept
1978), affd , 48 NY2d 348 (1979).
In Corning , the Court of Appeals was faced with a claim by former village officials for reimbursement
of their costs and legal fees incurred in asserting a successful defense to a civil rights action brought
against them in their official capacities. The Court held that, without the benefit of authorizing
legislation, the village's reimbursement of these expenses "would constitute a gift of public funds for a
purely private purpose" which is expressly prohibited by the Constitution. Corning , 48 NY2d at 350;
NY Const, Art VIII, § 1. The Court of Appeals cited the general principle that, absent extraordinary
circumstances, a municipality may not be compelled to pay for attorneys' fees unless an attorney's
retainer is authorized by statute or appropriate resolution of the governing body. Corning , 48 NY2d at

351. Central to the Court's denial of governmental indemnification, however, was the fact that the
     former officers were sued personally for their actions in office and that their attorneys performed no
     services for the village. Corning , 48 NY2d at 352. Any payment to the attorneys for the employees'
     previously incurred costs, absent prior authorizing legislation, would contravene the constitutional
     prohibition against gifts of public funds for a private purpose. Corning , 48 NY2d at 353. The Court held
     that a municipality may only spend money to satisfy lawful obligations and may not compensate persons
     for performing acts which the government itself had no duty to perform. Corning , 48 NY2d at 353.
     According to the Court,
     [o]ne 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. Corning , 48 NY2d
     at 353, citingChapman v City of New York , 168 NY 80, 85-86 (1901).
     The Court qualified its holding, however, by stating that
     [t]his 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.
Corning , 48 NY2d at 354.
Thus, the Court of Appeals in Corning held that the New York State Constitution prohibits a payment to
reimburse defense costs without a pre-existing local law meeting constitutional requirements and
authorizing the payment of these costs. The Court of Appeals recognized that a legislative decision to
reimburse these costs as part of the benefits provided to an employee in return for his public service
ensures that the benefit does not violate the gift and loan provisions of the State Constitution.
Therefore, it is clear that a local government is authorized to provide on a prospective basis for defense
and indemnification through the enactment of a local law. Further, in that the local law is enacted upon
home rule authority, it may be broader in its coverage than the provisions of section 18 of the Public
Officers Law. As under section 18, however, a local law may only provide for defense and
indemnification regarding actions by a municipal officer or employee that fall within the scope of his or
her employment. Otherwise, the expenditure of municipal funds would constitute an unconstitutional
gift of public money.
We conclude that section 18 of the Public Officers Law does not by its terms authorize the defense of a
municipal officer or employee in a proceeding before the New York State Division of Human Rights. A
municipality may, however, by local law provide on a prospective basis for the reimbursement of
defense costs in such a proceeding provided that the employee was acting within the scope of his or her
duties and is acquitted of the charges of discrimination.
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.