Can a New York state agency reimburse one of its employees for legal fees paid to a private attorney to respond to an Attorney Grievance Committee complaint?

Plain-English summary

A hearing officer for the New York State Office of Temporary and Disability Assistance (OTDA) hired a private attorney to respond to a complaint filed against him with the Attorney Grievance Committee of the Appellate Division, First Department. OTDA asked the AG whether it could reimburse the hearing officer for those legal fees under Public Officers Law §§ 17 and 19.

The AG said no. Section 17 obligates the State to provide a defense for employees sued in "any civil action or proceeding in any state or federal court" arising from acts within the scope of public employment, and provides indemnification for resulting judgments or settlements. Section 19 reimburses reasonable attorneys' fees for criminal proceedings in state or federal court (or grand jury appearances) that end favorably for the employee.

Neither provision reaches a Grievance Committee investigation. The investigation is conducted by the Committee under 22 N.Y.C.R.R. § 603.4 and is not a "civil . . . proceeding in any state . . . court" within § 17(2)(a). Even if the investigation later ripens into a petition filed in the Appellate Division (which would be a court proceeding), § 17 would not apply because such a petition would be brought "by or on behalf of the [S]tate," and § 17(2)(a) expressly excludes proceedings brought by the state.

Section 19 doesn't help either: a disciplinary proceeding is not a criminal proceeding, and there is no grand jury.

The AG also pointed to Op. Atty. Gen. No. 97-F9 (1997), which reached the same result for a Department of Transportation employee defending a driver's-license suspension hearing. Both opinions follow the same logic: §§ 17 and 19 are court-defense statutes, not catch-all reimbursement provisions for any legal matter touching an employee's job.

Currency note

This opinion was issued in 2002. 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

Q: What does Public Officers Law § 17 cover?
A: Defense of state employees sued in civil court proceedings arising from acts within the scope of their employment, plus indemnification for judgments or settlements (unless the employee acted with intentional wrongdoing). The statute requires the employee to comply with specified procedural requirements.

Q: What about criminal proceedings?
A: Public Officers Law § 19 reimburses reasonable attorneys' fees for criminal proceedings or grand jury appearances arising from on-the-job conduct, when the proceedings end favorably (acquittal, dismissal, or no indictment).

Q: Why isn't a Grievance Committee investigation covered?
A: Two reasons. First, it isn't a civil action or proceeding "in any state or federal court" at the investigation stage. Second, even if it advances to a formal petition in the Appellate Division, the petition would be "brought by or on behalf of the [S]tate," which § 17(2)(a) expressly excludes.

Q: Is there any state authority to reimburse this kind of cost?
A: Not under §§ 17 and 19 as the AG read them. Other authority might exist in agency-specific statutes, collective bargaining agreements, or budget allocations, but the AG did not analyze those.

Q: How does this affect agency attorneys generally?
A: Agency attorneys facing disciplinary complaints have to either represent themselves, accept representation by agency staff (if the agency is willing and ethically able to provide it), or pay for private counsel out of pocket. State employee defense statutes do not extend to professional licensing matters.

Q: What about the 1997 driver's license opinion?
A: Op. Atty. Gen. No. 97-F9 held that §§ 17 and 19 did not authorize reimbursement for a Department of Transportation employee's legal fees at a Department of Motor Vehicles hearing about retaining his driver's license. Both opinions confirm that the statutes are limited to court proceedings as defined in their text.

Background and statutory framework

Public Officers Law § 17 provides defense and indemnification for State employees in civil court proceedings arising from on-the-job conduct. Section 17(1)(a) defines "employee" to include any person holding a state position by election, appointment, or employment, with carve-outs for independent contractors. Section 17(2)(a) imposes the duty to defend, with the exception for proceedings brought by or on behalf of the state. Section 17(3)(a) deals with indemnification for judgments and settlements.

Public Officers Law § 19 covers criminal proceedings and grand jury appearances. Section 19(2)(a) provides for reimbursement of reasonable attorneys' fees upon acquittal, dismissal, or no indictment, when the proceeding arose from on-the-job conduct.

Attorney discipline in New York is administered by the Grievance Committees of the various Appellate Divisions. 22 N.Y.C.R.R. § 603.4 governs the First Department's process. The Committee investigates and prosecutes, and may file a petition in the Appellate Division if appropriate. Throughout the investigation phase, the matter is not in court; once a petition is filed, it is a court proceeding brought by the state.

The AG opinion sits at the intersection of these two regimes. §§ 17 and 19 reach court proceedings; the early phase of Grievance Committee work is not in court; the later phase is in court but is a state-brought matter. Either way, the statutes do not reach.

Citations and references

Statutes and rules:

• Public Officers Law § 17 (state employee civil defense and indemnification)
• Public Officers Law § 17(1)(a) (definition of employee)
• Public Officers Law § 17(2)(a) (duty to defend; carve-out for state-brought proceedings)
• Public Officers Law § 17(3)(a) (indemnification)
• Public Officers Law § 19 (criminal proceedings and grand jury)
• Public Officers Law § 19(2)(a) (reimbursement)
• 22 N.Y.C.R.R. § 603.4 (First Department disciplinary process)
• 22 N.Y.C.R.R. § 603.4(a)(1) (investigation and prosecution authority)
• 22 N.Y.C.R.R. § 603.4(c) (complaint filing)
• 22 N.Y.C.R.R. § 603.4(d) (petitions in the Appellate Division)

Prior AG opinions:

• Op. Atty. Gen. No. 97-F9 (1997) (DOT employee, DMV license hearing not covered)

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/2002-F4_pw.pdf

Original opinion text

PUBLIC OFFICERS LAW §§ 17, 19; 22 N.Y.C.R.R. § 603.4.

Public Officers Law sections 17 and 19 do not authorize reimbursement to an employee for legal fees incurred by hiring a private attorney to respond to a complaint filed with the Disciplinary Committee of the New York Supreme Court, Appellate Division, First Department.

December 11, 2002

Hon. Brian J. Wing
Commissioner, New York State
Office of Temporary and Disability Assistance
40 North Pearl Street
Albany, NY 12243

Formal Opinion
No. 2002-F4

Dear Commissioner Wing:

Your Deputy General Counsel has inquired whether the Office of Temporary and Disability Assistance (OTDA) is authorized to reimburse one of its hearing officers for legal fees incurred in responding to a complaint filed with the Disciplinary Committee of the New York State Supreme Court, Appellate Division, First Department. In responding to the complaint, the hearing officer hired a private attorney.

In a telephone conversation between a member of our staff and Russell Hanks, OTDA Deputy General Counsel for the Office of Administrative Hearings, to clarify his request for an opinion, Mr. Hanks indicated that hearing officers for the OTDA are currently all employees, as opposed to independent contractors.

Sections 17 and 19 of the Public Officers Law provide authority for defense of an employee of the State. For purposes of both provisions, "employee" is in relevant part defined as any person holding a position by election, appointment or employment in the service of the state, whether or not compensated, or a volunteer expressly authorized to participate in a state-sponsored volunteer program, but does not include an independent contractor. Public Officers Law §§ 17(1)(a), 19(1)(a). Under section 17, upon compliance by the employee with certain specified procedural requirements,

the [S]tate shall provide for the defense of the employee 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 . . . . This duty to provide for a defense shall not arise where such civil action or proceeding is brought by or on behalf of the [S]tate.

§ 17(2)(a). Section 17(3)(a) provides for indemnification in the amount of any judgment obtained against the employee in any state or federal court or in the amount of any settlement of a claim, if the act or omission from which the judgment or settlement arose occurred while the employee was acting within the scope of his employment and not from the employee's intentional wrongdoing.

Section 19 of the Public Officers Law requires the State to reimburse an employee for reasonable attorneys' fees and litigation expenses incurred by the employee in his defense of a criminal proceeding in a state or federal court arising out of any act which occurred while the employee was acting within the scope of his public employment or duties, upon his acquittal or the dismissal of criminal charges against him. Public Officers Law § 19(2)(a). Also, the State is required to reimburse reasonable attorneys' fees incurred by an employee in connection with an appearance before a grand jury which returns no indictment against the employee, where the appearance resulted from actions occurring while the employee was acting within the scope of his public employment or duties. Id.

By its express terms, section 17 does not authorize reimbursement of fees incurred responding to a disciplinary complaint. The initial investigation of the complaint by the Disciplinary Committee for the Appellate Division, First Department did not constitute a "civil . . . proceeding in any state . . . court," Public Officers Law § 17(2)(a). The Disciplinary Committee is charged with investigating and prosecuting matters involving alleged misconduct by attorneys. 22 NYCRR § 603.4(a)(1). Investigation by the Committee may be commenced upon receipt of a specific complaint by the Committee; while the complaint must be signed by the complainant, it need not be verified before it is filed with the Committee. 22 NYCRR § 603.4(c). Only after investigation of the complaint and determination that filing a petition against an attorney is appropriate must the Committee commence disciplinary proceedings in the Appellate Division, First Department. 22 NYCRR § 603.4(d). Because the initial investigation and review of the complaint is conducted by the Disciplinary Committee before a petition is brought before the court, section 17 does not authorize reimbursement of costs incurred by an employee during this initial phase of the process.

Likewise, while section 19 provides for reimbursement of defense costs in "any criminal proceeding in a state or federal court" or in connection with an appearance before a grand jury, id., § 19(2)(a), a disciplinary proceeding is not a criminal proceeding, nor does it involve a grand jury.

Furthermore, we are not aware of any case law interpreting sections 17 and 19 as extending to authorizing reimbursement of fees incurred by an employee in defending himself in a disciplinary proceeding. In a prior opinion, we found that these same statutes provided no authorization for the Department of Transportation to reimburse an employee for legal fees incurred in another type of administrative proceeding, specifically a hearing before the Department of Motor Vehicles to determine the right of the employee to retain his driver's license. See Op. Atty. Gen. No. 97-F9 (1997).

We conclude that Public Officers Law sections 17 and 19 do not authorize reimbursement to an employee for legal fees incurred by hiring a private attorney to respond to a complaint filed with the Disciplinary Committee of the New York State Supreme Court, Appellate Division, First Department.

Very truly yours,

ELIOT SPITZER
Attorney General

Footnotes:

1. This opinion is limited to the issue of reimbursement for private attorneys under Public Officers Law sections 17 and 19, and does not discuss the extent to which State agency employees may, as part of their official duties, respond to disciplinary complaints filed against agency attorneys.
2. Although that investigation might have resulted in the Committee filing a petition against your employee in the Appellate Division, see 22 NYCRR § 603.4(d), such a proceeding would most likely be viewed as one brought "by or on behalf of the [S]tate," Public Officers Law § 17(2)(a), and hence would have been expressly exempt from eligibility for reimbursement of attorneys' fees under section 17.