If you serve on a New York state advisory council without pay, does the state still defend and indemnify you if someone sues you over your council work?

Plain-English summary

The Division of Criminal Justice Services asked whether the unpaid members of the Security Guard Advisory Council, a 17-member body that recommends training rules to DCJS, are eligible for state-paid defense and indemnification if they get sued for their council work. Public Officers Law § 17 covers state "employees," and the question turned on whether unpaid council members count.

The AG said yes. Section 17 defines "employee" broadly, covering anyone "holding a position by election, appointment or employment in the service of the state, whether or not compensated." That language reaches volunteers and uncompensated appointees as long as they are in the service of the state. The opinion identified three factors that placed the council members within that category: every member was appointed by the Governor, the council was established by statute as part of an executive department (DCJS), and the council performed an integral function in the state's security-guard registration scheme by helping DCJS develop and apply training regulations.

The opinion contrasted earlier rulings. Members of bodies established within a state department (Lake George Park Commission, regional service councils, local emergency committees) had been covered by § 17. Members of bodies operating with structural independence from the state (Harlem International Trade Center Corporation) had not. The Security Guard Advisory Council fell on the covered side because it had no status independent of the state and was created within and reported to DCJS.

So if a council member was sued in connection with their council duties, the state would defend them and indemnify any judgment or settlement, subject to the procedural requirements built into § 17 (timely notice, cooperation, and so on) and the standard exclusion for intentional wrongdoing.

Currency note

This opinion was issued in 2012. 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 was this question even close?

Section 17 protection often gets associated with paid state employment. The Security Guard Advisory Council members were uncompensated, only entitled to actual expenses. The opinion clarifies that the "in the service of the state" test, not the "on the payroll" test, controls.

What three factors did the AG weigh?

Appointment by a state officer (every member here was appointed by the Governor), location within a state administrative department (the council was established within DCJS by statute), and integration into a state regulatory program (the council shaped DCJS's security-guard training regulations and adjudicated revocations of training-school approval).

Does this rule apply to other state advisory bodies?

The opinion's reasoning extends to similarly structured councils, but each body has to be evaluated on its own facts. A private trade association whose members happen to advise the state would not pass the test; a statutorily created council inside an executive department probably would.

What does defense and indemnification actually cover?

Under § 17(2)(a), the state pays for the defense of the employee in any state or federal civil action arising from acts within the scope of public duties (except suits brought by the state itself). Under § 17(3)(a), the state pays the judgment or settlement amount, except where the act was intentional wrongdoing.

Did the AG rely on past precedent?

Yes. It cited Op. Att'y Gen. No. 96-F9 (regional service council members covered), 89-F2 (local emergency committee members covered), 88-F10 (Lake George Park Commission members covered), 99-F4 (Deferred Compensation Board members covered), and 91-F3 (Harlem International Trade Center Corporation members not covered). The pattern is structural integration with a state department, not compensation.

What about the controlling court precedent?

Matter of O'Brien v. Spitzer, 7 N.Y.3d 239 (2006), is the Court of Appeals decision interpreting § 17. That case set the analytical framework the AG applied here.

Background and statutory framework

The Security Guard Advisory Council is a creature of Executive Law § 841-a. Its 17 members include the Secretary of State and the DCJS Commissioner (or their designees) as ex officio members, and 15 members appointed by the Governor, some on the recommendation of state legislative leaders. At least five must come from the security field. None receive a salary, only actual and necessary expenses. Executive Law § 841-a(6).

The council's substantive role is set by Executive Law § 841-b. It recommends to the DCJS Commissioner the rules for training security guards. It can inspect security guard training schools subject to the Commissioner's approval. If the Commissioner revokes a training school's approval or an instructor's certification, the school or instructor may request a hearing before the council; the council then recommends a result to the Commissioner. 9 N.Y.C.R.R. §§ 6028.5, 6029.7.

The underlying registration scheme for security guards lives in General Business Law § 89-g and following: every security guard in New York must register with the state and complete training requirements set by DCJS regulation.

The defense-and-indemnification statute, Public Officers Law § 17, defines "employee" in subsection (1)(a) to include any person "holding a position by election, appointment or employment in the service of the state, . . . whether or not compensated." Volunteers in state-sponsored programs are included; independent contractors are excluded. The Court of Appeals applied that definition in Matter of O'Brien v. Spitzer, 7 N.Y.3d 239 (2006).

The mechanics of coverage: § 17(2)(a) provides for defense in civil actions arising from acts within the scope of public duties, with an exception for actions brought by or on behalf of the state. Section 17(3)(a) provides for payment of judgments or settlements except those arising from intentional wrongdoing.

Citations

The defining statute: Public Officers Law § 17, particularly subsections (1)(a), (2)(a), and (3)(a). The council's enabling statutes: Executive Law §§ 841-a, 841-b. The underlying registration program: General Business Law §§ 89-g, 89-h(2), 89-m(1), 89-n. The training-school revocation procedure: 9 N.Y.C.R.R. §§ 6028.5, 6029.7. The controlling case: Matter of O'Brien v. Spitzer, 7 N.Y.3d 239 (2006). Prior AG opinions cited as comparators: Nos. 96-F9, 89-F2, 88-F10, 99-F4, 91-F3.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/2012-f2pw.pdf

Original opinion text

Public Officers Law §§ 17, 17(1)(a), 17(2)(a), 17(3)(a); Executive Law §§ 841-a(1), 841a(1)(a), 841-a(1)(f), 841-a(6), 841-b(1), 841-b(2)(c); General Business Law §§ 89-g, 89h(2), 89-m(1), 89-n, N.Y.C.R.R. §§ 9, 6028.5, 9, 6029.7

The members of the Security Guard Advisory Council are eligible for defense and indemnification pursuant to Public Officers Law § 17.

December 4, 2012

Gina L. Bianchi
Deputy Commissioner & Counsel
Division of Criminal Justice Services
Four Tower Place
Albany, New York 12203-3764

Formal Opinion
No. 2012-F2

Dear Ms. Bianchi:

You have requested an opinion regarding whether the members of the Security Guard Advisory Council are eligible for defense and indemnification pursuant to section 17 of the Public Officers Law. For reasons that follow, we answer that question in the affirmative.

The Security Guard Advisory Council (hereinafter "Council") is established within the Division of Criminal Justice Services (DCJS), a part of the Executive Department. Executive Law § 841-a(1). The Council has 17 members, all of whom are appointed by the Governor, some upon the recommendation of state legislative leaders. Id. At least five of the members must be drawn from the security field; all must be residents of the State. Id. § 841-a(1)(a),(f). The Secretary of State and the Commissioner of DCJS or their designees are ex officio members. Id. § 841-a(1). The members of the Council are not compensated but are entitled to their actual and necessary expenses incurred in the performance of their Council functions. Id. § 841-a(6).

Security guards in New York must register with the State. General Business Law § 89-g. Registration requires compliance with certain training requirements. Id. §§ 89-h(2), 89-m(1), 89-n. The Council's function is to recommend to the Commissioner of DCJS rules and regulations pertaining to the training of security guards. Executive Law § 841-b(1). The Council also may perform other functions, including visiting and inspecting any security guard training schools subject to approval by the Commissioner. Executive Law § 841-b(2)(c). Additionally, if the Commissioner revokes the approval granted to a security guard training school or the certification of an instructor, the school or instructor may request a hearing before the Council to determine the revocation. 9 N.Y.C.R.R. 6028.5, 6029.7. After the hearing, the Council submits its recommendation to the Commissioner, who decides whether to revoke the approval. Id.

Public Officers Law § 17 provides authority for the defense and indemnification of an employee of the State. Matter of O'Brien v. Spitzer, 7 N.Y.3d 239 (2006). "Employee" is a term of art defined in subdivision (1)(a) of section 17 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). Under section 17, upon compliance by the employee with certain specified procedural requirements,

the state 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.

Id. § 17(2)(a). The statute 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 or her employment and not from intentional wrongdoing. Id. § 17(3)(a).

Thus, the crucial question is whether the individual is an "employee" of the State within the meaning of section 17. If so, then such individual is eligible for defense and indemnification by the State. And that question distills to whether the members "hold[ ] a position by election, appointment or employment in the service of the state . . . whether or not compensated." Id. § 17(1)(a).

In our opinion, the members of the Security Guard Advisory Council are in "the service of the state" and thus are "employees" for purposes of section 17. First, each and every member is appointed by a state officer, the Governor, a factor that we have found relevant to section 17 determinations in the past. See Op. Att'y Gen. No. 96-F9 (members of regional service councils who were designated by Commissioner of Health covered by section 17); Op. Att'y Gen. No. 89-F2 (members of local emergency committees appointed by Executive Department covered by section 17); Op. Att'y Gen. No. 88-F10 (members of Lake George Park Commission appointed by Governor with Senate consent covered by section 17). Second, the Council was established as an entity within an administrative department of the State, another factor indicating that its members are in the service of the State. Op. Att'y Gen. (Inf.) No. 88-F10 (Lake George Park Commission created within Department of Environmental Conservation). The Council has no status independent of the State. Compare Op. Att'y Gen. No. 99-F4 (members of Deferred Compensation Board eligible for section 17 coverage) with Op. Att'y Gen. No. 91-F3 (members of Harlem International Trade Center Corporation not eligible for section 17 coverage). Third, the Council is an integral component of the State's program of security guard registration and training: the State, through DCJS, uses the expertise and experience of the Council's members, who include representatives of the security guard industry, to develop regulations and standards for security guard training. For these reasons, we are of the opinion that the members of the Security Guard Advisory Council are eligible for defense and indemnification pursuant to Public Officers Law § 17.

Very truly yours,

ERIC T. SCHNEIDERMAN
Attorney General