If a New York village or library board member is personally named as a co-defendant in a lawsuit against the board, do they have to recuse from the board's deliberations and executive sessions about defending the case?

Plain-English summary

A civil rights suit was filed against the Village of Malverne board and the village library board, both as corporate entities, with one member of each board also named as an individual defendant. The village attorney represented both boards. They shared an insurance policy. The village attorney asked whether the individually-named board members could participate in deliberations about the case (including settlement) and attend executive sessions to hear from counsel.

The AG concluded they could. Board members have a baseline duty as elected representatives to participate in board deliberations and represent the interests of the village or library. That duty does not vanish simply because they were also named individually in the same suit.

The structural point is important. A determination has been made (under Public Officers Law § 18 or a parallel local law) that the village and library will defend these members at public expense, because the acts alleged occurred or allegedly occurred while the members were acting within the scope of their public duties (the Corning v Laurel Hollow framework). That determination places the members and the boards on the same side of the litigation. Their interests overlap. Recusal would only deprive the board of needed input and abandon the member's duty.

The AG added a caveat. If at some point during the litigation a particular member's interests diverge from the board's (for example, if liability theory points to individual misconduct outside the scope of public duties, or if settlement terms treat the board and the individual differently), recusal may become appropriate. That call is fact-specific and should be made on the village attorney's advice, since the attorney has the ultimate responsibility for defending the entities.

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

Why isn't this just a standard conflict of interest?

The standard conflict requires opposing interests. Here, the board and the named member share the same litigation posture: both want to win or settle favorably. They are co-defendants, not adversaries. The conflict only arises if their interests later diverge.

What about executive session?

Executive sessions to receive legal advice are routinely available to public bodies under Open Meetings Law § 105. Once the member is properly participating in deliberations, attending executive session to receive counsel's advice is part of that participation.

What triggers a duty to recuse mid-litigation?

The AG signals this is the village attorney's call. Common triggers include: an insurance carrier or the village attorney concluding the member's actions were outside the scope of public duties (defense ceases under § 18); a settlement structure that treats the board and individual differently; emergence of factual disputes between the member and the board; or appearance of an indemnification clawback claim against the member.

What if both boards have the same attorney and same insurance, as here?

Shared counsel and shared insurance can create joint-defense efficiencies and risks. The village attorney must manage potential conflicts among multiple clients per the Rules of Professional Conduct. The AG's opinion does not delve into the attorney-client management; it is addressed only to the board's deliberation question.

How does this interact with Public Officers Law § 18 indemnification?

If the board ends up paying a judgment or settlement on behalf of the entities, § 18 may also cover the individual member if the acts were in scope. The defense already being provided at public expense is the AG's signal that the in-scope determination has been made.

Background and statutory framework

Public Officers Law § 18 is the local-government defense and indemnification framework. A municipality that has opted in defends and indemnifies its employees for in-scope acts. Corning v Laurel Hollow, 64 AD2d 918 (2d Dept 1978), affd 48 NY2d 348 (1979), is the foundational case on the public-funds-for-private-purpose limit and the in-scope requirement.

When the village or library has accepted the duty to defend a named individual member, that signals the determination that the alleged acts were in scope of public duties. The shared defense puts the individual and the board on the same side of the case.

Citations

• Public Officers Law § 18 (local-government defense and indemnification framework).
• Corning v Laurel Hollow, 64 AD2d 918 (2d Dept 1978), affd 48 NY2d 348 (1979) (defense at public expense requires in-scope acts).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_97-32_pw.pdf

Original opinion text

PUBLIC OFFICERS LAW § 18.
Board members named in a lawsuit may participate in the
village and library boards' deliberations, regarding the
village's and library's liability as named entities in the
lawsuit, and may be present when the boards convene in executive
session to receive the advice of counsel.
July 30, 1997
Peter F. Zullo, Esq.
Village Attorney
Village of Malverne
99 Church Street
Malverne, NY 11565-1726

Informal Opinion
No. 97-32

Dear Mr. Zullo:
You have requested an opinion concerning litigation brought
against the village board and the village library board. In your
request and subsequent telephone conversations, you state that a
civil rights suit has been filed against both boards as corporate
entities and that one member of each board also has been named as
an individual defendant. You have advised us that the boards are
independent entities and that you, as village attorney, represent
both boards. You also state that they are covered by the same
insurance policy.
You ask whether, when the village board meets to consider a
settlement proposal, the member who is named individually may
participate in deliberations or whether a disqualifying conflict
of interests exists. You also ask whether the member may be
present when the board, in executive session, hears the advice of
the village attorney and counsel for the insurance carrier. You
note that the same questions arise in connection with
deliberations by the village library board.
We conclude that the board members named in the lawsuit have
the duty, regarding the litigation against the village and
library, to participate in their boards' deliberations and in
executive session to receive the advice of counsel. Generally,
board members have a duty, as elected representatives, to
represent the interests of the village or library and their
constituents. Therefore, they have a responsibility to attend
board meetings and executive sessions and deliberate upon the
questions raised there.

2
In any event, the mere naming of a board member (or members
under the other scenarios you present) as an individual defendant
in a lawsuit in the circumstances you describe does not
disqualify the member from deliberating as to settlement of the
lawsuit. A determination has been made that the members are
entitled to defense by the village at public expense because the
acts alleged in the complaint occurred or allegedly occurred
while the employees were acting within the scope of their public
employment or duties. See, Public Officers Law § 18; Corning v
Laurel Hollow, 64 AD2d 918 (2d Dept 1978), affd, 48 NY2d 348
(1979). Accordingly, the members' interests appear, at least in
the first instance, to coincide with that of the board. In this
situation, there is no basis for disqualification. If at any
time during the course of the litigation, a board member's
interests are at odds with those of the village or library,
recusal may be necessary. This determination should be made upon
the advice of the village attorney, who ultimately has
responsibility to defend the village or library as a corporate
entity.
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,

SIOBHAN S. CRARY
Assistant Attorney General