Can a New York village enact its own defense and indemnification law for municipal officers, instead of relying on Public Officers Law § 18, even if the local law limits an officer's choice of conflict counsel?

Plain-English summary

The Village of Port Chester was drafting a local law for defense and indemnification of its officers and employees. The proposed local law differed from Public Officers Law § 18 in one specific way: if the village attorney had a conflict of interest, the affected officer or employee would have to pick counsel from a list of three attorneys selected by the village attorney and approved by the village board. Section 18, by contrast, gives the officer or employee the right to choose counsel.

The village attorney asked two questions. First, is § 18 the only path to defense and indemnification for a local government? Second, can the village's list-based local law be enacted instead?

The AG said § 18 is not the only path. A local government has three basic choices:

1. Enact a local law that is the sole indemnification authority for the locality.
2. Adopt Public Officers Law § 18 in full.
3. Adopt § 18 as a supplement to, or partial replacement for, other indemnification provisions.

Public Officers Law § 18(2) makes § 18 available to local governments by local option. § 18(12) is critical: once a local government opts into § 18, the section takes the place of all other defense and indemnification provisions for its employees unless the local government expressly preserves them. The Third Department's Coker v City of Schenectady confirms that effect.

The AG anchored the alternative-local-law route in Corning v Village of Laurel Hollow (the Court of Appeals decision recognizing that local governments may enact their own indemnification laws). Provision of defense and indemnification is a "term and condition of employment," which is within home rule authority under Municipal Home Rule Law § 10(1)(ii)(a)(1). The Legislature did not preempt the field. So the village can pick whichever of the three structures works best.

The village in this case picked option (1): a sole-source local law. The AG said that was permissible.

On the list-of-attorneys mechanic, the AG raised a concern without barring the approach. Generally, requiring officers and employees to pick from a village-approved list is permissible. Public Officers Law § 18 itself contemplates similar mechanics (the chief legal officer may, for example, require that groups of similarly situated employees be represented by the same counsel; fees must be reasonable). But the AG flagged a different concern: when there is a divergence of interests between the officer/employee and the village itself, a village-prepared list of attorneys creates at least the appearance of a conflict of interest. The listed attorneys are dependent on the village for legal work, which compromises independence. The AG suggested permitting the officer or employee to select counsel subject to "reasonable restrictions" in that situation.

Currency note

This opinion was issued in 1998. 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 Public Officers Law § 18 mandatory for local governments?

Section 18 is by design an opt-in statute. Subdivision (2) makes it available "upon an affirmative decision by the local government or other entity to utilize its provisions." A local government that does not affirmatively opt in is not governed by § 18, and may instead use its general home-rule authority to enact a tailored local indemnification regime.

What is "home rule" authority for indemnification?

Municipal Home Rule Law § 10(1)(ii)(a)(1) authorizes local governments to enact local laws on the "powers, duties, qualifications, number, mode of selection and removal, terms of office, compensation, hours of work, protection, welfare and safety of [their] officers and employees." Defense and indemnification falls within "protection, welfare and safety" and is treated as a term and condition of employment. So local governments can legislate in this area as long as they don't conflict with general state law.

If a village adopts § 18, can it also keep older provisions?

Only if the village expressly preserves them. § 18(12) provides that adoption of § 18 supersedes other defense and indemnification provisions unless preservation is express. Coker v Schenectady confirmed that any prior local-law indemnification protection is wiped out by an unconditional opt-in. Villages adopting § 18 should be deliberate about what they want to keep.

Why does the AG flag the list-of-attorneys mechanic?

Because of the appearance of a conflict. If the village attorney has a conflict, the officer or employee needs independent counsel. An attorney drawn from a list controlled by the village (and dependent on the village for future legal business) is not fully independent in fact, and not at all independent in appearance. The AG did not say the mechanic is per se unlawful, but recommended permitting the officer or employee to select counsel directly, subject to reasonable restrictions like fee caps and qualifications.

What "reasonable restrictions" could the village impose?

Public Officers Law § 18 supplies a model: required reasonableness of attorneys' fees and litigation expenses (§ 18(3)(b)), permissible grouping of similarly situated employees with a single counsel, and chief legal officer oversight of the relationship. A local law adopting these or analogous restrictions while preserving counsel choice would have stronger structural integrity.

Does the same logic apply to a town or a city?

Yes. The same three structural options are available to any "local government" with home-rule authority over its officers and employees. A town or city may enact a sole-source local law, may opt into § 18, or may combine § 18 with preserved local-law provisions.

Background and statutory framework

Public Officers Law § 18 is the local-government-focused counterpart to § 17 (which applies to State employees). § 18 provides defense and indemnification in civil actions and proceedings arising out of acts within the scope of public employment, on terms similar to § 17. Subdivision (2) makes it an opt-in for local governments and other entities. Subdivision (3)(b) sets fee reasonableness rules. Subdivision (12) governs the supersession effect of an opt-in.

Municipal Home Rule Law § 10(1)(ii)(a)(1) is the home rule grant covering "officers and employees" of a local government, including their "protection, welfare and safety." Defense and indemnification fall within that category.

Corning v Village of Laurel Hollow is the foundational case allowing local-law indemnification. The Court of Appeals' 1979 affirmance settled the principle.

Coker v City of Schenectady (3d Dept 1994) interpreted § 18(12). The City had opted into § 18 without expressly preserving its prior local-law indemnification. The court held that the prior local law was superseded. The case is the most concrete example of the § 18(12) effect and is the reason careful drafting on opt-in is essential.

Citations

• Municipal Home Rule Law § 10(1)(ii)(a)(1) (home rule authority over officers/employees, including welfare and safety).
• Public Officers Law § 18 (local-government defense and indemnification framework).
• Public Officers Law § 18(2) (opt-in mechanism for local governments).
• Public Officers Law § 18(3)(b) (reasonableness of attorneys' fees and litigation expenses).
• Public Officers Law § 18(12) (supersession of other provisions on opt-in unless preserved).
• Corning v Village of Laurel Hollow, 64 AD2d 918 (2d Dept 1978), aff'd, 48 NY2d 348 (1979) (local governments may enact own indemnification law).
• Coker v City of Schenectady, 200 AD2d 250 (3d Dept 1994), appeal dismissed, 84 NY2d 1027 (1995) (§ 18 opt-in supersedes prior local-law indemnification unless expressly preserved).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_98-4_pw.pdf

Original opinion text

MUNICIPAL HOME RULE LAW § 10(1)(ii)(a)(1); PUBLIC OFFICERS LAW
§ 18.
Section 18 of the Public Officers Law is not the exclusive
scheme for defense and indemnification by a local government. A
local government may provide for defense and indemnification by
local law.

February 6, 1998

Anthony M. Cerreto, Esq.
Village Attorney
Village of Port Chester
10 Pearl Street
Port Chester, NY 10573

Informal Opinion
No. 98-4

Dear Mr. Cerreto:
You have informed us that your village is considering
enacting a local law that would provide for defense and
indemnification of village officers and employees. Under the
proposed local law, in the event that the village attorney is
unable to represent an officer or employee of the village because
of a conflict of interests, the officer or employee would have
the right to alternate counsel but would have to obtain legal
representation from a list of three attorneys selected by the
village attorney and satisfactory to the village board of
trustees. You have noted that this provision is inconsistent
with section 18 of the Public Officers Law, which in the case of
a conflict of interests affords the officer or employee the right
to choose his or her own attorney. Your inquiry is whether
section 18 of the Public Officers Law is the exclusive means for
defense and indemnification of municipal officers and employees
or whether the village has the authority under the provisions of
the Municipal Home Rule Law to enact a local law providing for
defense and indemnification that includes the above provision.
Public Officers Law § 18 provides a scheme for defense and
indemnification of local government and other officers and
employees upon an affirmative decision by the local government or
other entity to utilize its provisions. Public Officers Law
§ 18(2). If section 18 is employed through local option, however,
it takes the place of defense and indemnification provided to the
local government's employees by any other legislative enactment
unless the local government provides that the benefits of section

2
18 will supplement, rather than replace these other defense and
indemnification provisions. Id., § 18(12). If other defense and
indemnification 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).
Local governments are also authorized to enact local laws
providing for defense and indemnification of their officers and
employees. See, Corning v Village of Laurel Hollow, 64 AD2d 918
(2d Dept 1978), affd, 48 NY2d 348 (1979). The provision of
defense and indemnification is a term and condition of employment
and therefore falls within home rule authority. Municipal Home
Rule Law § 10(1)(ii)(a)(1).
Therefore, a local government has three basic choices. It
may enact a local law providing for defense and indemnification
solely under the provisions of that law. Alternatively, the local
government may elect to apply the provisions of section 18 of the
Public Officers Law. Finally, a local government may supplement
the provisions of section 18 or replace certain provisions of
section 18 with other provisions enacted by local law. You have
indicated that your village has decided to enact a local law
which would constitute the sole authorization for local defense
and indemnification. Under the above analysis, this is
permissible.
Generally, we see no impediment to the establishment by
local law of a list of attorneys from which an officer or
employee of the village must obtain legal counsel in the event
that the village attorney has a conflict of interests in
representing the officer or employee. Under section 18 of the
Public Officers Law, for example, the chief legal officer of the
local government may require as a condition to the payment of
fees and expenses for representation that appropriate groups of
employees be represented by the same counsel. Also, attorneys'
fees and litigation expenses are required to be reasonable.
Public Officers Law § 18(3)(b). You should consider, however,
the potential for a divergency of interests between the officer
or employee of the village and the village itself as an entity.
In a situation like this, it may be inappropriate to require the
officer or employee to select an attorney from the list prepared
by the village. In that the attorney would be dependent upon the
village for legal work under its local law, arguably a conflict
of interests would result. In such a situation, there is at
least an appearance of a conflict of interests which can be
avoided by permitting the officer or employee to select legal
counsel of his or her choice subject to reasonable restrictions.

3
We conclude that section 18 of the Public Officers Law is
not the exclusive scheme for defense and indemnification by a
local government. A local government may provide for defense and
indemnification by local law.
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