If a New York BOCES district superintendent gets sued for actions in their state-level supervisory role, does the state cover their defense and indemnification under Public Officers Law § 17?

Plain-English summary

New York district superintendents wear two hats. They lead a supervisory district under Education Law § 2204 (a state Education Department function), and they serve as chief executive officer of the BOCES that governs that supervisory district under § 1950(2) (a local function). The Commissioner of Education asked the AG whether these dual-role officials get state defense and indemnification under Public Officers Law § 17 when sued in their state-function capacity.

The AG said yes for state functions, while acknowledging the dual role.

POL § 17 defines an "employee" as a person in the service of the state by election, appointment, or employment, excluding independent contractors. The threshold question was whether a district superintendent qualifies.

The Education Law gives the district superintendent several state-level duties: determining school district boundaries; directing boards of education to repair school district property; conducting in-service conferences; conducting investigations; taking testimony and reporting to the Commissioner in appeals; issuing subpoenas and taking affidavits (Education Law § 2215(1), (2), (3), (11), (12)). The position is filled by BOCES appointment subject to the Commissioner's approval (§ 2204(1), (2)). The salary is paid in part by the Commissioner of Education from state funds (§ 2209(1)), with optional additional local payments (§ 1950(4)(a)(1)) and local supervisor-funded supplements (§ 2209(2)). The superintendent is "subject to such regulations and directions" as the Commissioner prescribes (§ 2216). The Commissioner can withhold all or part of the salary for persistent neglect of state duties (§ 2211) and can remove the superintendent under § 306 (§ 2212).

That ensemble of features (state appointment approval, state salary, state direction, state removal authority) makes the superintendent a state employee for § 17 purposes when carrying out state functions. The fact that the superintendent also serves the BOCES (a local function) does not negate state-employment status for the state functions.

The AG draws the parallel to Op Atty Gen (Inf) No. 86-26 (the county clerks in New York City who serve as clerks of the Supreme Court). That opinion held that county clerks were entitled to § 17 protection for their Supreme Court clerk functions notwithstanding their separate local powers. The Court of Appeals confirmed dual-capacity reasoning more generally in National Westminster Bank, USA v State, 76 NY2d 507 (1990).

The cleanly limited holding: § 17 applies to lawsuits arising out of the district superintendent's state functions. Lawsuits arising from BOCES (local) functions would be analyzed separately, presumably under Public Officers Law § 18 (the local-government parallel to § 17).

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 is a supervisory district?

Education Law § 2201 establishes supervisory districts as state-defined groupings of school districts. Each supervisory district has a district superintendent (§ 2204). The supervisory district structure is overlaid with BOCES (§ 1950) for shared services. The district superintendent serves the supervisory district's state-related supervisory functions and the BOCES's local shared-services functions.

What is a BOCES?

A Board of Cooperative Educational Services. § 1950 establishes BOCES as the entity providing shared educational services across the constituent school districts of the supervisory district. BOCES boards handle budgets, contracts, service offerings, and personnel for the shared-services operation. The district superintendent is the BOCES chief executive officer.

What kind of state functions trigger § 17 coverage?

Per § 2215 and related provisions: determining school district boundaries; directing repairs to school district property; conducting in-service conferences; investigating; taking testimony and reporting to the Commissioner in appeals; issuing subpoenas; taking affidavits; carrying out other state Education Department directives. Any of these can give rise to lawsuits that fall within § 17.

What about lawsuits arising from BOCES (local) functions?

The opinion does not formally address them. The implication is that POL § 18 (the local-government defense-and-indemnification statute) would apply, with the BOCES making the local-level decisions. § 18 functions much like § 17 but is administered by the local entity.

Who pays the district superintendent's salary?

Education Law § 2209(1) provides a base salary paid by the Commissioner of Education from state funds. § 2209(2) allows the supervisors of constituent towns to fund an increase, which is then levied as a tax on town residents through the county board of supervisors. § 1950(4)(a)(1) allows local payments by BOCES for BOCES-related duties.

How is a district superintendent removed?

The BOCES board can remove the superintendent by majority vote (§ 2212). The Commissioner can also remove the superintendent under § 306. The dual mechanisms (BOCES local, Commissioner state) reflect the dual role of the position itself.

Background and statutory framework

Public Officers Law § 17 is the state-employee defense-and-indemnification framework. § 17(1) defines "employee" inclusively but excludes independent contractors. § 17(2) imposes the duty to defend or reimburse defense costs. § 17(3) provides indemnification.

The Education Law architecture for supervisory districts and BOCES is laid out across several sections: § 1950 (BOCES); § 1711 (city school district superintendents); § 2201 (supervisory districts); § 2204 (appointment of district superintendent); § 2209 (salary); § 2211 (Commissioner's authority to withhold salary); § 2212 (removal); § 2215 (statutory duties); § 2216 (subject to Commissioner's regulations); §§ 2503 and 2565 (city school district superintendents). § 306 is the Commissioner's general removal authority over school officers.

The dual-capacity analysis traces from county-clerk practice (Op Atty Gen (Inf) No. 86-26 and similar) and was confirmed in National Westminster Bank, USA v State, 76 NY2d 507 (1990). People v Murphy, 652 NYS2d 754 (2d Dept 1997), is cited for the proposition that the district superintendent serves both state and local roles.

Citations

• Public Officers Law § 17 (state-employee defense and indemnification).
• Education Law § 306 (Commissioner's removal authority).
• Education Law § 1711 (city school district superintendents; not the subject of this opinion).
• Education Law § 1950 (BOCES framework).
• Education Law § 1950(2) (district superintendent as BOCES chief executive officer).
• Education Law § 1950(4) (BOCES powers including budgets and contracts).
• Education Law § 1950(4)(a)(1) (additional local payments to district superintendent).
• Education Law § 1950(4)(e) (BOCES personnel recommendations).
• Education Law § 2201 (supervisory district composition).
• Education Law § 2204(1), (2) (BOCES appointment of district superintendent, subject to Commissioner's approval).
• Education Law § 2209(1) (state-funded base salary).
• Education Law § 2209(2) (local supervisor-funded supplements).
• Education Law § 2211 (Commissioner may withhold salary for persistent neglect of duty).
• Education Law § 2212 (removal by BOCES majority vote or by Commissioner under § 306).
• Education Law § 2215(1), (2), (3), (11), (12) (state functions of district superintendent).
• Education Law § 2216 (subject to Commissioner's regulations and directions).
• Education Law §§ 2503, 2565 (city school district superintendent provisions).
• People v Murphy, ___ AD2d ___, 652 NYS2d 754 (2d Dept 1997) (district superintendent serves dual state and local roles).
• National Westminster Bank, USA v State, 76 NY2d 507 (1990) (dual-capacity analysis confirmed).
• Op Atty Gen (Inf) No. 86-26 (county clerks as Supreme Court clerks entitled to § 17 protection for state functions).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/97-F10_pw.pdf

Original opinion text

EDUCATION LAW §§ 306, 1711, 1950, 2201, 2204, 2209, 2211, 2212,
2215, 2216, 2503, 2565; PUBLIC OFFICERS LAW § 17.
A district superintendent of a supervisory school district
is entitled to the protections of Public Officers Law § 17 in
connection with lawsuits that arise out of the performance of the
superintendent's State functions.

November 5, 1997
Hon. Richard P. Mills
Commissioner
Department of Education
Education Building
Albany, NY 12234

Formal Opinion
No. 97-F10

Dear Commissioner Mills:
You have asked whether district superintendents of schools
receive the protections of Public Officers Law § 17, which
governs defense and indemnification of state employees, when they
are sued in connection with their State duties and
responsibilities. Your question pertains to district
superintendents of supervisory districts appointed pursuant to
Education Law § 2204. A supervisory district is composed of
several school districts. Id., § 2201. The district
superintendent of a supervisory district also serves as chief
executive officer of the district's Board of Cooperative
Educational Services ("BOCES"). Your inquiry does not concern
the superintendent of an individual school district appointed by
a local board of education pursuant to Education Law §§ 1711,
2503, 2565 or any other provision.
Under the terms and conditions of section 17, State
employees are eligible for defense and indemnification. An
"employee" is defined in part as "any person holding a position
by election, appointment or employment in the service of the
state . . . whether or not compensated . . . but shall not
include an independent contractor". Upon compliance by the
employee with procedural requirements, the State is required to
defend the employee or reimburse defense costs in any "civil
action or proceeding in any state or federal court arising out of
any alleged act or omission which occurred or is alleged in the
complaint to have occurred while the employee was acting within
the scope of his public employment or duties . . .". Id.,
§ 17(2)(a), (b). A parallel provision provides for
indemnification. Id., § 17(3)(a).

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Accordingly, the issue is whether a district superintendent
of schools is a State employee within the meaning of the statute.
We have determined that a district superintendent of a
supervisory district has dual roles. The superintendent serves
the State as the general supervising officer of each of the
supervisory school districts of the State. The superintendent
also serves a local function as chief executive officer of the
BOCES that governs each of the supervisory districts. Education
Law § 1950(2); People v Murphy, AD2d, 652 NYS2d 754
(2d Dept 1997). A BOCES is formed "for the purpose of carrying
out a program of shared educational services in the schools of
the supervisory district and for providing instruction in such
special subjects as the commissioner [of Education] may approve".
Education Law § 1950(1).
The dual State and local roles of the superintendent are
reflected in the Education Law. The district superintendent's
statutory duties include several functions to be performed for
the State Education Department. The superintendent determines
school district boundaries, directs boards of education to make
necessary repairs or alterations to school district property,
conducts in-service conferences, conducts investigations, and
takes testimony and reports to the Commissioner in cases on
appeal. Id., § 2215(1), (2), (3). The superintendent is
authorized to issue subpoenas and take affidavits. Id.,
§ 2215(11), (12).
The superintendent also serves as executive officer of the
BOCES board, which performs a wide variety of local functions
including preparing budgets, determining what services to provide
and contracting. Id., § 1950(2), (4). Among other duties
performed for the BOCES, the superintendent makes recommendations
on the employment of teachers, supervisors, administrative
assistants, clerical help and others to provide services to the
schools of the supervisory district. Id., § 1950(4)(e).
The Education Law provides that the district superintendent
for each supervisory district is to be appointed by the BOCES of
that district, subject to the approval of the Commissioner. Id.,
§ 2204(1), (2). The Education Law also provides that each
district superintendent is to receive a specified salary from the
State payable by the Commissioner of Education. Id., § 2209(1).
The superintendent may receive additional local payments for
duties performed on behalf of the BOCES. Id., § 1950(4)(a)(1).
The Education Law authorizes the supervisors of the towns that
form the supervisory district to increase the salary of the
district superintendent. Any such increase is to be funded by a

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tax on town residents levied by the county board of supervisors.
Id., § 2209(2).
The district superintendent is "subject to such regulations
and directions" as the Commissioner shall prescribe. Id.,
§ 2216. The Commissioner is authorized to withhold payment of
all or part of a district superintendent's salary if the
Commissioner finds that the superintendent has persistently
neglected to perform an official duty. Id., § 2211. The
superintendent may be removed from office at any time upon the
affirmative vote of a majority of the members of the BOCES or by
the Commissioner pursuant to Education Law § 306. Id., § 2212.
We conclude that a district superintendent of schools is a
State employee entitled to the protections of Public Officers Law
§ 17 in connection with lawsuits that arise out of the
performance of the superintendent's State functions. State law
provides for the district superintendent to perform specified
duties for the State Education Department. The superintendent's
salary is paid in part by the Commissioner of Education, who has
the authority to withhold salary and to remove a superintendent.
The fact that the superintendent also serves local functions does
not render section 17 inapplicable. In a prior opinion, we found
that county clerks in counties within New York City are entitled
to defense and indemnification under the terms of section 17 in
actions arising out of their duties as clerks of the Supreme
Court. Op Atty Gen (Inf) No. 86-26. We recognized that the
county clerks filled dual roles and reasoned that the function of
clerk of the Supreme Court constituted State employment even
though the clerks also possessed other powers and duties
prescribed by local law. We concluded that, notwithstanding
their performance of some local functions, the clerks were
covered by section 17 while performing State functions. Id.; see
also, National Westminster Bank, USA v State, 76 NY2d 507 (1990).
The same rationale applies here. The statutory provisions cited
above make clear that the district superintendent of a
supervisory district is a State employee within the coverage of
section 17 while carrying out functions for the State Education
Department.
Very truly yours,

DENNIS C. VACCO
Attorney General