Are unpaid guardians ad litem who serve in the New York City Civil Court Housing Part's program covered by the State's defense and indemnification under Public Officers Law § 17?

Plain-English summary

Public Officers Law § 17 requires the State to defend and indemnify its employees against civil liability for acts within the scope of their public duties. The statute defines "employee" broadly to include not only paid state workers but also "a volunteer expressly authorized to participate in a state-sponsored volunteer program," excluding independent contractors. The Civil Court of the City of New York operates a guardian ad litem program in its Housing Part: a pool of trained volunteers who protect the interests of housing-court litigants whom the court has found incapable of understanding the proceedings against them, often because of mental illness or age.

Volunteer GALs in this program apply to the court, receive six hours of training from Office of Court Administration staff plus further training from Civil Court staff, and are placed on a roster. When a Housing Part judge needs a guardian for a specific litigant, court staff pull two names from the roster and the judge appoints one. Judges can discharge a guardian whose work proves unsatisfactory, and the court can remove a guardian from the roster for incompatible conduct. The GALs in question receive no compensation.

Deputy Chief Administrative Judge Carey asked the AG whether these unpaid GALs were covered by § 17. The AG concluded yes: they are volunteers in a state-sponsored volunteer program.

The opinion applies the AG's prior framework for identifying state-sponsored volunteer programs. The factors include whether the program was established and is administered by a state agency, and whether participants are appointed and directly supervised by state employees. Past AG opinions had applied that framework to volunteer arbitrators and mediators (2004-F3), participants in the Volunteer Lawyers Project of the Housing Court (2000-F1), and bar mediators serving the Appellate Division, First Department (92-F7).

The Civil Court administers the program, and court staff oversee it. Court staff are state employees under Judiciary Law § 39(6); they select and train the GALs, and the court can remove someone from the roster. Selected participants receive a designation letter. The AG concluded that these features make the program state-sponsored. Because the GALs in question receive no compensation, the AG treated them as volunteers.

The eligibility for § 17 coverage is conditional. The opinion says defense and indemnification depend on compliance with the procedural requirements in § 17(4). Defense covers civil actions arising from alleged acts or omissions within public duties; indemnification covers qualifying judgments or settlements, excluding injury or damage resulting from intentional wrongdoing.

The conclusion concerns the unpaid GALs described to the AG. The opinion does not decide how § 17 applies to compensated GALs.

Currency note

This opinion was issued in 2006. 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 does it matter whether a GAL is a "volunteer" versus an "employee" versus an "independent contractor"?
Public Officers Law § 17 covers volunteers in state-sponsored programs and state employees, but expressly excludes independent contractors. Coverage is the difference between the State paying the defense and any judgment and the individual having to do so. For volunteer GALs in the Housing Court program, this opinion is the basis for coverage.

Does this also cover legal malpractice claims against the GAL?
The opinion does not decide that claim type. It quotes § 17's rule for defense of civil actions based on alleged acts or omissions within public duties and notes the statute's procedural requirements.

What exactly counts as a "state-sponsored volunteer program"?
The AG considered whether a state agency established and administered the program and whether state employees appointed and directly supervised participants. In this program, court staff oversee, select, and train GALs, and the court can remove them from the roster. The opinion does not set a rule for private nonprofit programs.

Are GALs in non-Housing Court contexts covered too?
The opinion concerns the particular unpaid GAL program in the New York City Civil Court's Housing Part. It does not decide coverage for other programs.

What if a GAL receives a nominal reimbursement of expenses?
The opinion says the GALs in question receive no compensation. It does not address expense reimbursement or paid GALs.

Background and statutory framework

Public Officers Law § 17 provides for defense and indemnification of state employees. Subsection (2) provides defense in civil actions arising out of acts within the scope of public employment or duties. Subsection (3)(a) provides indemnification of judgments and settlements, excluding injury or damage resulting from intentional wrongdoing. Subsection (4) imposes procedural prerequisites, which the opinion does not detail.

Subsection (1)(a) defines "employee" 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 shall not include an independent contractor."

Court staff are state employees under Judiciary Law § 39(6), as the opinion notes when identifying the program as state-sponsored.

The AG considered state-agency establishment and administration, plus appointment and direct supervision of participants by state employees. Here the Civil Court administered the program, court staff selected and trained participants, the court could remove them from the roster, and selected GALs received designation letters.

Citations

• Public Officers Law § 17 (the defense-and-indemnification regime); § 17(1)(a) (definition of "employee" including volunteers in state-sponsored programs); § 17(2) (defense); § 17(3)(a) (indemnification); § 17(4) (procedural conditions for coverage).
• Judiciary Law § 39(6) (court staff are state employees).
• Op. Att'y Gen. No. 2004-F3 (volunteer arbitrators and mediators); Op. Att'y Gen. No. 2000-F1 (Volunteer Lawyers Project of the Housing Court); Op. Att'y Gen. No. 92-F7 (bar mediators and pro bono counsel for the Appellate Division, First Department).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/2006-F3_pw.pdf

Original opinion text

Public Officers Law §§ 17, 17(1)(a), 17(2), 17(3)(a), 17(4); Judiciary Law § 39(6)

Unpaid guardians ad litem serving in the New York City Civil Court's guardian ad litem program are eligible for State-provided defense and indemnification.

April 6, 2006

Hon. Joan B. Carey
Deputy Chief Administrative Judge
New York City Courts
Office of Court Administration
25 Beaver Street
New York, NY 10004

Formal Opinion No. 2006-F3

Dear Administrative Judge Carey:

Special Counsel to the Administrative Judge of the Civil Court of New York City has asked whether certain guardians ad litem who serve in the Civil Court's Housing Part's guardian ad litem program are entitled to defense and indemnification under Public Officers Law § 17. As explained below, we are of the opinion that the guardians ad litem are eligible for section 17 coverage as "volunteer[s] expressly authorized to participate in a state-sponsored volunteer program."

The Guardian ad Litem Program

We understand that since 2003, the Civil Court of the City of New York has operated a program within the Housing Part to maintain a pool of guardians ad litem to protect the interests of litigants whom the Court has deemed incapable of understanding the nature and consequences of a proceeding brought against them because of, e.g., mental illness or age.

An individual must apply to the Court to become a guardian ad litem. Applicants receive six hours of training conducted by staff of the Office of Court Administration, and subsequent training by Civil Court staff. Civil Court staff review the applications; the individuals selected to participate in the guardian ad litem program receive a letter so designating them from a member of the Court staff. Upon selection as a participant in the guardian ad litem program, the individual is added to a roster from which potential guardians ad litem are chosen as needed by Housing Part judges. When a judge indicates that a guardian ad litem is to be appointed for a litigant in a specific matter, Court staff provide the judge with two names from the roster; the judge makes the appointment from one of those names. The judge may discharge the guardian in the event that his or her work proves unsatisfactory or detrimental to the interests of his or her ward. Moreover, the Court may remove a guardian from the list of eligible appointees for conduct incompatible with appointment.

The guardians ad litem about whom you are inquiring receive no compensation for their services.

Analysis

Section 17 of the Public Officers Law provides that the State generally must provide for the defense and indemnification of its employees. Defense is provided 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 . . . to have occurred while the employee was acting within the scope of his public employment or duties." Public Officers Law § 17(2). Indemnification is in the amount of any judgment obtained against the employee in any state or federal court, or in the amount of any settlement of claim, if the act underlying the judgment or settlement occurred while the employee was acting within the scope of his public employment or duties and the injury or damage complained of was not the result of intentional wrongdoing by the employee. Id. § 17(3)(a). The provision of defense and indemnification is dependent on the public employee's compliance with certain specified procedural requirements. Id. § 17(4).

Under section 17, "employee" is 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 shall not include an independent contractor." Public Officers Law § 17(1)(a). We have been asked whether the guardians ad litem are volunteers participating in a state-sponsored volunteer program. We believe that they are.

We have previously evaluated whether particular programs constitute state-sponsored volunteer programs; factors relevant to our past inquiries have included whether the program was established and administered by a state agency, and whether the participants were appointed and directly supervised by state employees. See, e.g., Op. Att'y Gen. No. 2004-F3 (volunteer arbitrators and mediators); Op. Att'y Gen. No. 2000-F1 (participants in the Volunteer Lawyers Project of the Housing Court); Op. Att'y Gen. No. 92-F7 (attorneys serving as bar mediators and pro bono special counsel on behalf of the Supreme Court, Appellate Division, First Department).

Considering these same factors in relation to the subject of your inquiry, we are of the opinion that the guardians ad litem are participating in a state-sponsored volunteer program. The program is administered by the Civil Court and is overseen by Court staff, who are employees of the State, see Judiciary Law § 39(6). The guardians ad litem are selected and trained by Court staff, and the Court has the power to remove individuals from the list of those available to serve. We thus believe that the particular characteristics of this program indicate state sponsorship.

Because you have indicated that these guardians ad litem receive no compensation, and thus are clearly "volunteers," and that they receive a letter from Court staff indicating their selection to the guardian ad litem program, we are of the opinion that these guardians ad litem are eligible for state-provided defense and indemnification as "volunteer[s] expressly authorized to participate in a state-sponsored volunteer program" pursuant to Public Officers Law § 17.

Very truly yours,

ELIOT SPITZER
Attorney General