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

Plain-English summary

The New York City Civil Court Housing Part runs a guardian ad litem program. Volunteer GALs, who are unpaid, were the subject of an earlier 2006 AG opinion (2006-F3); that opinion concluded they are state-sponsored volunteers covered by Public Officers Law § 17.

This opinion addresses a different subset: GALs who receive $600 per case for representing clients of New York City's Adult Protective Services. The flat fee is paid by New York City. GALs know about the fee before accepting an assignment. They appear in court, coordinate with social-service agencies, negotiate settlements, and otherwise advocate for their wards. Outside the courtroom, they work on their own schedule, in their own location, and pay their own expenses. The court can discharge them on a particular matter and can remove them from the roster.

The Deputy Chief Administrative Judge asked the AG whether these compensated GALs were covered by § 17. The AG said no.

The AG's analysis follows the structure of § 17(1)(a)'s definition. An "employee" eligible for coverage is "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." The earlier opinion (2006-F3) found unpaid GALs to be "volunteers" in a "state-sponsored volunteer program." For paid GALs, the volunteer route was closed because they receive compensation. The question therefore became whether they were state employees or independent contractors.

The AG applied the Court of Appeals' control test from O'Brien v. Spitzer, 7 N.Y.3d 239 (2006), which had recently held that court-appointed referees are independent contractors. Under O'Brien, an employee is someone subject to substantial control not only over the results produced but also over the means used. An independent contractor is subject to less extensive control. Control over the means is the more important factor.

Applied to compensated Housing Court GALs, the relevant facts pointed strongly to independent-contractor status:

• The GAL works without day-to-day supervision from the court.
• Except when appearing in court, the GAL chooses their own hours.
• The GAL determines the amount of contact with the ward.
• Expenses are not reimbursed by the State.
• The GAL exercises independent judgment about the ward's needs and interests and represents those judgments to the court.

Some facts pointed the other way but were not enough. Court staff train GALs, and CPLR 1207 requires court approval of settlement agreements involving a ward. The AG read training as a "requirement that the work be done properly" (citing Matter of Hertz Corp., 2 N.Y.3d 733 (2004)) and settlement-approval as a protection of the ward's interests rather than a means of dictating GAL conduct (citing Stahl v. Rhee, 220 A.D.2d 39 (2d Dep't 1996)). The familiar appellation of GALs as "officers of the court," from In re Becan, 26 A.D.2d 44 (1st Dep't 1966), did not change the answer either: attorneys, court-appointed referees, and similar fiduciaries are also "officers of the court" without thereby becoming State employees, as both Wieder v. Skala, 80 N.Y.2d 628 (1992) (attorneys) and O'Brien (referees) confirm.

The AG concluded that compensated Housing Court GALs are independent contractors with respect to the State and therefore not eligible for § 17 coverage. The opinion did not foreclose another avenue: General Municipal Law § 50-k governs the City's obligation to defend and indemnify its employees, so whether compensated GALs paid by APS have a § 50-k claim against the City is a separate question the AG sent back to the City to decide.

Read together, 2006-F3 and 2006-F5 draw a clean line. Within the same Housing Court GAL program, volunteer GALs are covered by State defense and indemnification under § 17, while compensated GALs are not. The line is the receipt of compensation.

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

What was the $600 paid for?
The fee was paid by New York City for GAL work on behalf of clients of the City's Adult Protective Services. The fee was a flat per-case payment, known to the GAL in advance.

Is a GAL who is paid a fee always an independent contractor?
The AG's analysis turned on the control test, not just the fact of payment. The combination of compensation plus the absence of day-to-day supervision, GAL-set hours, GAL-borne expenses, and independent professional judgment produced the independent-contractor result. A different compensated GAL program with closer state supervision might come out differently.

If § 17 doesn't cover paid GALs, what does?
The AG pointed to General Municipal Law § 50-k as the framework for civil actions against City employees. Whether compensated APS GALs are "employees" of the City under § 50-k is a question for the City to determine, not the State.

Why does training not make a GAL a state employee?
The AG cited Matter of Hertz Corp., 2 N.Y.3d 733 (2004), where the Court of Appeals held that training instructions on how to do the work do not by themselves convert an independent contractor into an employee. Insisting on competent work is consistent with either status.

Why doesn't court approval of settlements make the GAL subject to State control?
CPLR 1207 requires court approval of settlements involving wards. The AG read that as protecting the ward, not as State control of the GAL's professional judgment. Stahl v. Rhee makes clear that the court's power to approve a settlement does not include power to dictate the terms.

Does this opinion address malpractice insurance for GALs?
No. It addresses the State's statutory obligation under § 17. A paid GAL who is not covered by § 17 should consider what other insurance or indemnification protections apply (private malpractice coverage, City § 50-k coverage if applicable).

Background and statutory framework

The Public Officers Law § 17 defense-and-indemnification scheme covers state "employees," which the statute defines to include both compensated and uncompensated holders of state positions and "volunteer[s] expressly authorized to participate in a state-sponsored volunteer program," but expressly excludes "independent contractor[s]." The 2006-F3 opinion handled the volunteer route for unpaid GALs.

The Court of Appeals' O'Brien v. Spitzer, 7 N.Y.3d 239 (2006), is the key control-test precedent. O'Brien held that court-appointed referees are independent contractors for purposes of § 17, with the result that they are not covered. The opinion identifies a multi-factor test: lack of day-to-day supervision, ability to choose hours of work, having to furnish materials, paying one's own expenses, all suggest independent-contractor status, with control over the means as the most important factor.

Matter of Ted Is Back Corp. (Roberts), 64 N.Y.2d 725 (1984), is the older Court of Appeals authority on the control test, originally in the employer/independent-contractor context.

The Housing Court GAL program operates under court rules and the inherent authority of the Civil Court. The specific compensation arrangement for APS GALs at issue in this opinion came from New York City's APS program, not from the court.

Read across both 2006-F3 and 2006-F5, the test for § 17 coverage in court volunteer programs looks like this. If the participant is unpaid and the program is state-sponsored (state agency administers it, court staff select and supervise, court has removal power), the participant is a covered volunteer. If the participant is paid by an outside party and works under the control profile of an independent contractor (own hours, own expenses, independent professional judgment), § 17 does not cover them and another framework (such as GML § 50-k for City employees) must be considered.

Citations

• Public Officers Law § 17; § 17(1)(a) (definitional clauses; exclusion of independent contractors); § 17(2) (defense); § 17(3)(a) (indemnification); § 17(4) (procedural conditions).
• General Municipal Law § 50-k (City obligation toward its employees).
• C.P.L.R. 1207 (court approval of settlements involving wards).
• O'Brien v. Spitzer, 7 N.Y.3d 239, 242-43 (2006) (control test; court-appointed referees are independent contractors); O'Brien v. Spitzer, 24 A.D.3d 9, 12 (2d Dep't 2005) (Second Department decision, reversed).
• Matter of Ted Is Back Corp. (Roberts), 64 N.Y.2d 725, 726 (1984) (control over the means is the more important factor).
• Matter of Hertz Corp., 2 N.Y.3d 733, 734 (2004) (training instructions do not by themselves create an employment relationship).
• Stahl v. Rhee, 220 A.D.2d 39, 44-45 (2d Dep't 1996) (court approval power does not include power to dictate settlement terms).
• In re Becan, 26 A.D.2d 44, 45, 48 (1st Dep't 1966) (GAL as officer of the court).
• Wieder v. Skala, 80 N.Y.2d 628, 635 (1992) (attorneys are officers of the court); Lane v. Chantilly Corp., 251 N.Y. 435, 437 (1929) (referees as officers of the court).
• Riley v. Erie Lackawanna R.R. Co., 119 Misc. 2d 619, 621 (Sup. Ct. 1983) (GAL function compared to other court-related fiduciaries).
• Op. Att'y Gen. No. 98-F2 (physicians who made independent opinions about State Police candidates and members were independent contractors).
• Op. Att'y Gen. No. 2006-F3 (companion opinion: unpaid Housing Court GALs are state-sponsored volunteers covered by § 17).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/2006-F5_pw.pdf

Original opinion text

Public Officers Law §§ 17, 17(1)(a), 17(2), 17(3)(a), 17(4); General Municipal Law § 50-k; Civil Practice Laws and Rules § 1207

Compensated guardians ad litem serving in the New York City Civil Court's guardian ad litem program are not eligible for State-provided defense and indemnification.

October 24, 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-F5

Dear Administrative Judge Carey:

Special Counsel to the Administrative Judge of the Civil Court of New York City has asked whether certain individuals who serve in the guardian ad litem program of the Civil Court's Housing Part are entitled to defense and indemnification under Public Officers Law § 17. As explained below, we are of the opinion that these guardians ad litem are not eligible for section 17 coverage.

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.

Each applicant to the guardian ad litem program receives training conducted by staff of the Office of Court Administration, as well as subsequent training by Civil Court staff. Upon acceptance to 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. The individual is then eligible for appointment when a judge determines that a guardian ad litem should be appointed for a litigant in a specific matter.

The guardians ad litem who are the subject of this inquiry receive compensation, $600 per case, for work performed on behalf of clients of New York City's Adult Protective Services. The flat fee is paid by New York City. The guardian ad litem is aware of the availability of the fee before he or she accepts a particular assignment.

Upon appointment in a specific matter, the guardian ad litem's role is to protect the interests of the litigant. As described on the Housing Court's website, "Court[-]appointed [guardians] are expected to advocate on behalf of their ward with the goal of making any necessary interventions to prevent eviction. Although the specific responsibilities of a [guardian] vary according to the case, common duties often include: making court appearances, coordinating with social service agencies in an effort to secure needed entitlements or services, and negotiating settlements with other parties involved in the case." See New York City Civil Court, Housing Part, Prospective Guardians ad Litem, available at http://www.courts.state.ny.us/courts/nyc/housing/GALprospective.shtml.

Other than when required to appear in court, the guardian ad litem performs his or her responsibilities at hours set by the guardian, at a location determined by him or her. Expenses incurred by the guardian ad litem in the performance of his or her duties are not reimbursable by the State.

The judge may discharge the guardian in the event that the guardian's 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.

Analysis

This Office has been asked whether these compensated guardians ad litem are eligible for defense and indemnification under section 17 of the Public Officers Law. As explained more fully below, we conclude that these guardians ad litem are not eligible for State-provided defense and indemnification. We believe the question of whether they should be afforded representation and indemnification as public "employees" is governed by General Municipal Law § 50-k, which applies to civil actions against employees of New York City. The question of whether any such obligation exists here should be addressed to the City.

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 or her 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 "employees" as defined by section 17. As explained below, we believe that with respect to the State, they are more properly characterized as independent contractors.

"Broadly speaking, an employee is someone who works for another subject to substantial control, not only over the results produced but also over the means used to produce the results" while a "person who works for another subject to less extensive control is an independent contractor." O'Brien v. Spitzer, 7 N.Y.3d 239, 242 (2006). Control over the means is the more important factor to be considered. Matter of Ted Is Back Corp. (Roberts), 64 N.Y.2d 725, 726 (1984). Factors relevant to concluding that a person is an independent contractor rather than an employee include whether the person works without day-to-day supervision, chooses his or her own hours of work, furnishes any materials needed for the work, and pays his or her own expenses. O'Brien at 243.

We believe that the manner in which the guardian conducts his or her work precludes a conclusion that the guardian ad litem is an "employee" as opposed to an independent contractor under section 17. Like the court-appointed referee found to be an independent contractor in O'Brien, a guardian ad litem works without day-to-day supervision from the court and, other than when required to appear in court, chooses his or her own hours of work. The guardian determines the amount of contact he or she will have with the represented litigant. Expenses incurred by the guardian are not reimbursed by the State. Moreover, the guardian ad litem exercises independent judgment with respect to the needs and interests of the represented litigant and represents those judgments to the Court. See Op. Att'y Gen. No. 98-F2 (physicians who made independent opinions about the condition of candidates to and members of the State Police were independent contractors). Therefore, we believe that the Court does not control the manner in which the work is performed, rendering guardians ad litem independent contractors.

While several factors might suggest that guardians ad litem might be considered "employees" of the State, they ultimately do not support that conclusion. For example, State employees provide training to guardians ad litem. This alone, however, does not render the guardians ad litem "employees." See Matter of Hertz Corp., 2 N.Y.3d 733, 734 (2004) ("That Hertz gave claimant instruction on what to wear, what products to promote and how to make a presentation does not support the conclusion that claimant was an employee."). "The requirement that the work be done properly is a condition just as readily required of an independent contractor as of an employee." Id. Similarly, although settlement agreements are subject to Court approval, see C.P.L.R. 1207, this requirement is intended to protect the litigants and the validity of the agreement, rather than to require that the guardian ad litem take a particular position with respect to a settlement. See 4 Weinstein, Korn, & Miller, New York Civil Practice ¶¶ 1207.01, 1207.06 (2d ed. 2006). It does not render the guardian ad litem subject to the Court's direct control as an employee. Indeed, the Court's power to approve a settlement "does not confer a concomitant power to dictate the terms of the settlement." Stahl v. Rhee, 220 A.D.2d 39, 44-45 (2d Dep't 1996).

Finally, though guardians ad litem have been deemed "officers of the court" and an "arm of the court," see In re Becan, 26 A.D.2d 44, 45, 48 (1st Dep't 1966), we do not believe that this appellation requires the conclusion that they are thus employees of the Court. Attorneys are considered "officers of the court," see, e.g., Wieder v. Skala, 80 N.Y.2d 628, 635 (1992), as are court-appointed referees, see Lane v. Chantilly Corp., 251 N.Y. 435, 437 (1929); O'Brien v. Spitzer, 24 A.D.3d 9, 12 (2d Dep't 2005), rev'd, 7 N.Y.3d 239 (2006), yet attorneys, by virtue of this status alone, are not entitled to State-provided defense and indemnification, nor are referees, see O'Brien. Cf. Riley v. Erie Lackawanna R.R. Co., 119 Misc. 2d 619, 621 (S. Ct. 1983) ("The guardian ad litem does indeed have a public function, but it differs only in degree from the general obligations required of all attorneys as officers of the court [citation omitted]. That function differs even less from that of a receiver in a mortgage foreclosure, a trustee in bankruptcy, an executor, administrator, or other similar fiduciary. . . . [T]he intent and meaning of [Canons 5 and 9 of the Code of Professional Responsibility], pertaining to public employees and judicial officers, is unduly distorted if applied to the function of guardian ad litem.").

We therefore conclude that guardians ad litem appointed by the Housing Court who receive $600 from Adult Protective Services are not eligible for State-provided defense and indemnification.

Very truly yours,

ELIOT SPITZER
Attorney General