Are members of the New York State Independent Living Council (NYSILC) state officers subject to Public Officers Law appointment and quorum rules, and are they entitled to state-funded defense and indemnification under § 17?

Plain-English summary

The New York State Independent Living Council (NYSILC) is a 501(c)(3) not-for-profit corporation that the federal Rehabilitation Act requires New York to establish as a condition of receiving federal independent living funds (29 USC §§ 796d et seq.). NYSILC jointly develops the state independent living plan with state authorities, monitors implementation, and helps allocate federal funds for centers for independent living. The Council's chairperson asked the AG three questions about its members' legal status under New York law.

The AG split the answer.

Are NYSILC members subject to Public Officers Law appointment provisions? Yes. POL § 2 defines a state officer to include any person appointed by one or more state officers and authorized to exercise official functions throughout the entire state. The Council members are appointed by the Board of Regents and exercise statewide official functions. The harder question is whether they are "officers" rather than employees. The AG applies the standard public-officer test: exercise of sovereign powers, statutory designation, oath/bond/term/commission, position created by statute. NYSILC members exercise sovereign powers because federal law requires the Council and assigns it to develop the state independent living plan, monitor implementation, and approve disbursement of federal funds. The 1980 Op Atty Gen 72 (notary public opinion) confirmed that officers can exist outside the direct state or local employment relationship. NYSILC members therefore are officers subject to POL appointment requirements.

Are NYSILC members subject to General Construction Law § 41 quorum rules? Yes. GCL § 41 applies whenever three or more public officers are given any power or authority, or three or more persons are charged with any public duty to be performed jointly or as a board. NYSILC members are public officers and they carry out public duties (developing the state plan, approving Title VII fund distribution). The quorum rule requires that a majority of the whole number (total authorized membership) be present, and a majority of the whole number must vote in favor to take action. With the by-laws setting 20 voting members, at least 11 must be present for a quorum and at least 11 must vote yes to act.

Are NYSILC members entitled to POL § 17 defense and indemnification? No. POL § 17 covers persons in the service of the state but expressly excludes independent contractors. The federal Rehabilitation Act requires that the Council "shall not be established as an entity within a State Agency" (29 USC § 796d(a)), so its very design as a federally mandated independent body precludes state-employee status. The Council's contract with the Education Department expressly classifies NYSILC as an independent contractor. The relationship between the state and the Council is contractual, not employer-employee. The AG flags a footnote of caution: there are limited exceptions to the independent-contractor exclusion under § 17, but none apply to NYSILC.

The bottom line is that NYSILC members occupy a slightly unusual legal position: officers who exercise state sovereign authority but independent contractors who lack state defense protection. The Council's defense and indemnification needs would have to be addressed through its own resources, insurance, or contractual arrangements.

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 an Independent Living Council?

A federally mandated body in each state that develops the state's independent living plan for people with disabilities, monitors its implementation, and helps distribute federal Rehabilitation Act funds to centers for independent living. The federal Act requires the Council to be separate from state agencies and to have a majority of members who are not state employees or center employees (29 USC § 796d(a)).

Why is the Council an officer but not an employee?

These are different legal categorizations. "Officer" is about whether the person exercises sovereign powers of the state (yes, NYSILC members do). "Employee" is about whether the person is in the service of the state (no, NYSILC members are not, by federal requirement). The two answers can diverge, and they do here.

What sovereign powers do NYSILC members exercise?

Federal law requires the Council to jointly develop the state independent living plan, monitor and evaluate its implementation, and (in NYSILC's case under its contract) help develop standards for distributing Title VII Rehabilitation Act funds. These are exercises of governmental authority that affect program design and resource allocation across the state.

What does the quorum requirement mean in practice?

GCL § 41 requires that a majority of the whole authorized membership be physically present (quorum) and that a majority of the whole authorized membership vote yes (action) for the Council to act. For a 20-member Council, that means at least 11 present and at least 11 voting in favor. The "whole number" formula prevents action by a small majority of a small majority.

Why aren't NYSILC members entitled to § 17 defense and indemnification?

POL § 17 covers state employees, not independent contractors. NYSILC is by federal design and contractual classification an independent contractor relative to the state. Without § 17 coverage, NYSILC must obtain its own insurance or rely on its corporate-level indemnification arrangements.

Could the Legislature extend § 17 coverage to NYSILC?

Yes. POL § 17 has been amended on multiple occasions to extend coverage to specific public benefit corporations whose members were not state employees but who needed state defense protection (POL § 17(1)(b), (d), (j) are examples). The Legislature could do the same for NYSILC if it concluded the policy considerations warranted it.

Background and statutory framework

Public Officers Law § 2 defines a state officer broadly. § 3 sets qualifications for public office (citizenship, residency, oath). § 17 provides defense and indemnification for state employees and certain enumerated public benefit corporation employees.

General Construction Law § 41 governs quorum and voting requirements for any board or body of public officers (or three or more persons charged with joint public duties). A majority of the whole number for both quorum and action.

The Federal Rehabilitation Act, 29 USC §§ 796d et seq., establishes the framework for state independent living councils. § 796d(a) requires the Council to be independent of state agencies. § 796d(b) governs membership and appointments. § 796d(c) sets duties: jointly develop the state plan, monitor implementation, ensure open public meetings, keep records and reports.

Internal Revenue Code § 501(c)(3) governs the Council's tax-exempt status. The Council's certificate of incorporation, by-laws, and contract with the State Education Department supply the entity-specific details.

The public-officer-versus-employee distinction draws from the same line of cases applied in Op 97-48 (court clerk): MacDonald v Ordway, Haller v Carlson, Suffolk County v State, Op Atty Gen (Inf) Nos. 95-40 and 88-71. The independent-contractor analysis builds on Op 97-F1 (Medicaid consultants).

Citations

• General Construction Law § 41 (quorum and voting requirements for boards of public officers).
• Public Officers Law § 2 (definition of state officer).
• Public Officers Law § 3 (qualifications for public office).
• Public Officers Law § 17 (defense and indemnification for state employees).
• Public Officers Law § 17(1)(b), (d), (j) (specific public benefit corporation extensions).
• Internal Revenue Code § 501(c)(3) (Council's tax-exempt status).
• Rehabilitation Act § 723 (Title VII funds for independent living).
• 29 USC §§ 796d et seq. (state independent living council framework).
• 29 USC § 796d(a) (Council shall not be entity within state agency; majority not state employees).
• 29 USC § 796d(b)(1) (member appointments by Governor or appropriate state entity).
• 29 USC § 796d(b)(6)(A), (B), (7) (terms, term limits, vacancy procedures).
• 29 USC § 796d(c)(1), (2), (4), (5) (Council's plan development, monitoring, open meetings, recordkeeping).
• Matter of MacDonald v Ordway, 219 NY 328, 332 (1916) (statutory designation as office is indicator).
• Matter of Haller v Carlson, 42 AD2d 829 (4th Dept 1973) (sovereign powers test for officer status).
• Matter of County of Suffolk v State of New York, 138 AD2d 815 (3d Dept 1988), affd, 73 NY2d 838 (1989) (office created by statute).
• Op Atty Gen (Inf) Nos. 95-40, 88-71 (officer status indicia).
• 1980 Op Atty Gen 72 (notary public as officer without state employment).
• Op Atty Gen No. 97-F1 (independent-contractor analysis for Medicaid consultants).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/97-F11pw.pdf

Original opinion text

GENERAL CONSTRUCTION LAW § 41; PUBLIC OFFICERS LAW §§ 2, 3, 17; INTERNAL REVENUE CODE § 501(c)(3); REHABILITATION ACT § 723; 29 USC §§ 796d, et seq. The New York State Independent Living Council is subject to the appointment provisions of the Public Officers Law and the quorum requirements of General Construction Law § 41. Council members are independent contractors who are not entitled to defense and indemnification under the provisions of Public Officers Law § 17. November 5, 1997 Hon. Douglas J. Usiak Chairperson New York State Independent Living Council 111 Washington Ave. Suite 1010 Albany, New York 12210

Formal Opinion
No. 97-F11

Dear Mr. Usiak:
You have asked whether members of the New York State Independent Living Council ("NYSILC" or the "Council") are public officers. Specifically you seek our opinion as to whether the Council must follow statutory requirements governing appointment and meetings of Council members and whether Public Officers Law provisions regarding defense and indemnification of State employees apply to Council members. A separate statutory or common law standard applies to each of your questions. We conclude that the appointment provisions of the Public Officers Law apply because Council members exercise a portion of the sovereign power of the State, that the quorum provisions of General Construction Law § 41 apply to the Council because its members are public officers who carry out public duties, and that, because Council members are independent contractors and, therefore, are not in the service of the State, they are not covered by the defense and indemnification provisions of Public Officers Law § 17. The Council was established pursuant to the provisions of the Federal Rehabilitation Act governing independent living services. 29 USC §§ 796, et seq. (hereafter the "Act"). The Act establishes a number of requirements a state must satisfy to receive Federal funds to support independent living for persons with disabilities. A state must establish a statewide

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independent living council to be eligible for the funds. Id.,
§ 796d(a). Such a council "shall not be established as an entity within a State Agency" and a majority of the members must not be state employees or employees of centers for independent living. Id. The Council was incorporated as a not-for-profit corporation in 1995 and qualifies as tax exempt under section 501(c)(3) of the Internal Revenue Code. It entered into a contract with the State Education Department under which it is carrying out the provisions of the Act, which is deemed part of the contract. Under the contract, the Education Department provides funds for salaries, office space and supplies. The Act requires the Council to develop, jointly with state authorities, the state plan for provision of independent living services. 29 USC § 796d(c)(1). The Council also must monitor, review, and evaluate implementation of the plan and keep such records and make such reports as federal authorities require. Id., § 796d(c)(2), (5). The Council's Certificate of Incorporation states that the Council's purposes, in addition to those described above, are to advise the Education Department's Office of Vocational and Educational Services for Individuals With Disabilities ("VESID") with regard to establishment and operation of centers for independent living. The Council's contract with the State Education Department provides that the Council will develop standards and procedures, jointly with VESID, for reviewing and approving the distribution of Federal funds received pursuant to Title VII and section 723 of the Rehabilitation Act. The Act provides that Council members are to be appointed by the Governor or the appropriate State entity. 29 USC
§ 796d(b)(1). The Council's by-laws provide that the Board of Regents appoints the Council's 20 voting members who constitute the Board of Directors. The Board appoints the Executive Director to serve at the Board's discretion. The by-laws give the Board of Directors discretion to set the compensation for the Executive Director and to remove him or her. The Executive Director is responsible for recruiting, hiring, supervising and terminating all Council employees. The Act establishes the length of the directors' terms, limits members to two consecutive full terms and sets forth the procedure for filling vacancies. 29 USC § 796d(b)(6)(A), (B) and (7). It also provides that the Council is responsible for ensuring that all of its regularly scheduled meetings are open to the public and that sufficient advance notice of the meetings is provided. Id., § 796d(c)(4).

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The Council's contract with the State Education Department also provides in section IV, "Indemnification", that NYSILC "is an independent contractor and may neither hold itself out nor claim to be an officer, employee or subdivision of the State, nor make any claim, demand or application to or for any right based upon any different status". It makes the Council solely responsible in damages for any accidents or injuries to persons or property arising out of services performed by the Council or any subcontractors, and requires it to indemnify and hold harmless the State. Id. Your first question is whether NYSILC is constrained by statutory requirements governing appointments of State officers contained within the Public Officers Law. (See, Public Officers Law § 3.) The Public Officers Law defines a State officer as every officer for whom all the electors of the state are entitled to vote, members of the legislature . . . regents of the university, and every officer, appointed by one or more state officers, or by the legislature, and authorized to exercise his official functions throughout the entire state, or without limitation to any political subdivision of the state. . . . The office of a state officer is a state office. Public Officers Law § 2. Council members are appointed by the Regents and exercise their official functions throughout the State. Thus, we must analyze whether members are "officers". A determination whether an appointee is an officer rather than an employee requires an analysis of the powers, duties, qualifications and other characteristics of the job. For example, the statutory designation of a position as an "office" is some indication that the legislative body intended to treat its occupant as an officer. See, Matter of MacDonald v Ordway, 219 NY 328, 332 (1916). A public office is created by statute or local law and its powers and duties are prescribed by statute or local law. Matter of County of Suffolk v State of New York, 138 AD2d 815 (3d Dept 1988), affd, 73 NY2d 838 (1989). Other indicia of public office are the requirement to take an oath of office or file a bond, appointment for a definite term, and receipt of a commission of office or official seal. Op Atty Gen (Inf) Nos. 95-40, 88-71. In addition to these several indicia of status as an officer, a person who exercises a portion of the sovereign powers

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of government qualifies as an officer. Op Atty Gen (Inf) No. 95-40; see also, Matter of Haller v Carlson, 42 AD2d 829 (4th Dept 1973). As compared to an employee who does not discharge independent duties but acts by the direction of others, an officer is vested with discretion as to how the officer performs his or her duties. Matter of Haller v Carlson, supra. We are persuaded that members of the Council are officers by several important factors: Federal law requires formation of the Council as a condition precedent to the receipt of Federal funds and establishes the duties of Council members. As directed by Federal law, members of the Council develop the State's independent living plan and monitor its execution. 29 USC
§ 796d(c)(1), (2). Council members also approve disbursement of federal funds received by the state. In our view, these activities constitute exercise of the sovereign power of the State and Council members who perform them are officers. Accordingly, the requirements governing appointments contained in the Public Officers Law are applicable to members of the Council as officers performing their duties on a State-wide basis. We recognize that the Council is a not-for-profit corporation and that members of such corporations generally are not officers. Officers generally are in the employment of State or local governments. However, there is precedent for our conclusion that Council members, who are not employed by the State or a local government, are officers because they exercise sovereign powers. In 1980 Op Atty Gen 72, for example, we concluded that a notary public is an officer because, acting under a commission for a definite term, a notary exercises the sovereign power of the State by administering oaths and attesting to the authenticity of documents. A notary is not a State or local official. Your second question is whether members of NYSILC are subject to the statutory requirements governing meetings contained in section 41 of the General Construction Law. General Construction Law § 41 applies
[w]henever three or more public officers are given any power or authority, or three or more persons are charged with any public duty to be performed or exercised by them jointly or as a board or similar body. As discussed above, Council members are public officers. They also carry out public duties, which provides an additional basis

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for application of this statute. The obligations of the Council discussed above, including the development and approval of the State's independent living plan and the review and approval of distribution of Title VII funds, clearly are public duties. The Council's actions with respect to these obligations affect the public at large and the responsibilities are vested in the discretion of the Council by the State. Thus, the statutory requirements concerning presence of a quorum and majority vote apply to the Council. Under General Construction Law § 41, a majority of the whole number (meaning the total authorized membership) of persons making up the board or body constitutes a quorum. The board or body may not exercise its power, authority or duty in the absence of a quorum. Id. Further, a majority vote of the whole number is necessary for the board or body to take action. For example, if a statute or the by-laws of a covered entity provides for 20 members, at least 11 members must be present to have a quorum and then at least 11 members must vote for a proposal in order to take action. Your final question pertains to liability of Council members. The question is whether the State will defend and indemnify members pursuant to Public Officers Law § 17. Section 17 of the Public Officers Law provides for defense and indemnification of an "employee" which in part is defined to mean: any person holding a position by election, appointment or employment in the service of the state . . . or a volunteer expressly authorized to participate in a state-sponsored volunteer program, but shall not include an independent contractor. In our view, Council members are independent contractors. The Council is not subject to direct supervision or control by the Education Department, which is an indicator of independent contractor status. Op Atty Gen No. 97-F1. Moreover, the Federal law delineating the Council's powers and roles specifically requires that the Council remain independent from the State. Under the Act, such a Council "shall not be established as an

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entity within a State Agency" and a majority of the members must not be State employees or employees of centers for independent living. 29 USC § 796d(a). Thus, the relationship between the State and the Council is limited to a contractual one. The contract between NYSILC and the State Department of Education confirms that NYSILC is an independent contractor. Part IV(B) provides: The [Council] is an independent contractor and may neither hold itself out nor claim to be an officer, employee or subdivision of the State nor make any claim, demand or application to or for any right based upon any different status. The Council therefore is excluded from the protection afforded by Public Officer's Law § 17. Our conclusion that members of the Council are public officers with State-wide responsibility does not require coverage under section 17. In covering persons in the service of the State, the statute contemplates persons employed by the State of New York. We note that section 17 was amended to provide coverage for directors, officers and employees of several public benefit corporations, who were not State employees and who, therefore, would not have been covered without legislative action. Public Officers Law § 17(1)(b), (d), (j). In sum, it is our opinion that the Council is subject to the appointment provisions of the Public Officers Law and the quorum requirements of General Construction Law § 41. We also conclude that Council members are independent contractors who are not entitled to defense and indemnification under the provisions of Public Officers Law § 17. Very truly yours,

DENNIS C. VACCO
Attorney General