Is a BOCES staff member who investigates state test security breaches on behalf of the State Education Department covered by the state's defense-and-indemnification statute, even though the State doesn't pay them?

Plain-English summary

The State Education Department was directing district superintendents (the senior educational officers in each of New York's regional supervisory districts, who also run the local BOCES) to designate an "integrity officer" responsible for investigating test security breaches on the State's behalf. Sometimes the district superintendent took on the role themselves; other times they delegated it to a staff member of the BOCES.

The Department asked: when a BOCES staff member is designated as integrity officer and conducts test security investigations for the state, is that staff member covered by the State's defense-and-indemnification statute, Public Officers Law § 17? The AG had previously concluded that the district superintendent themselves was covered (Op. Att'y Gen. No. 97-F10). The new question was whether coverage extended down to the staff-level investigator.

The AG said yes. Two factors carried the analysis. First, the work performed for the State is the same regardless of whether the district superintendent or a staff member did it. The integrity officer reports to and works under the supervision of the Department's Test Security Unit, performs investigations using methods developed in consultation with that unit, and reports findings back. Second, even though a BOCES staff investigator is paid only by the BOCES (not the State), Public Officers Law § 17 expressly extends "employee" status to people serving the state "whether or not compensated." What matters is whether the worker is in the service of the state when they perform the duty in question.

The opinion borrows the test from Matter of O'Brien v. Spitzer, 7 N.Y.3d 239 (2006), the Court of Appeals decision that frames § 17's reach. O'Brien treats supervision, direction, and control over the means used as a hallmark of an employer's relationship. Because the integrity officer's investigative methods are directed by the Department, not the BOCES, the investigator is in the State's service for the purposes of these specific duties.

So when a BOCES staff investigator is sued in connection with a test security investigation, the State pays for the defense and any judgment or settlement, subject to § 17's procedural requirements and the standard exception for intentional wrongdoing.

Currency note

This opinion was issued in 2013. 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 that the integrity officer isn't paid by the state?

It doesn't, for § 17 purposes. The statute's text expressly covers persons serving the state "whether or not compensated." The opinion emphasizes this: a BOCES paycheck does not put the staff investigator outside § 17 when they are performing State Education Department investigations.

What test does the AG use to decide who is in the service of the state?

The AG applies the framework from Matter of O'Brien v. Spitzer, 7 N.Y.3d 239 (2006). It looks for supervision, direction, and control over the means used to do the work, the same elements courts use to distinguish an employee from an independent contractor. Where the State Education Department's Test Security Unit directs the methods, the worker is in the state's service for those tasks.

Does the integrity officer get coverage for everything they do, or only for state-related work?

Coverage tracks the duty. When the integrity officer is conducting a test security investigation under the Department's supervision, that work is "in the service of the state" and § 17 applies. Other BOCES duties, performed under BOCES (not state) supervision, are not covered by § 17 (though BOCES presumably has its own indemnification framework for its own employees).

What does coverage actually entitle the integrity officer to?

Section 17(2)(a) requires the State to defend the employee in any state or federal civil action arising from acts within the scope of public duties (other than actions brought by the state itself), once the employee meets the procedural requirements (timely notice, cooperation). Section 17(3)(a) requires the State to pay the amount of any judgment or settlement, except where the act was intentional wrongdoing.

Does this rule apply if the integrity officer is the district superintendent themselves?

Yes, and that was already settled. Op. Att'y Gen. No. 97-F10 covered district superintendents performing duties on behalf of the State. The new question this opinion answers is whether the rule reaches a staff-level designee, and the AG said it does.

What about a BOCES employee performing other state-directed work?

The opinion is narrow on its facts (test security investigations) but the reasoning generalizes. Any BOCES staffer performing duties under direct supervision of a state agency would arguably fall within the same logic. Each scenario should be analyzed on its own facts.

Background and statutory framework

New York's educational structure includes regional "supervisory districts" administered by district superintendents. Education Law § 2201. The district superintendent is both the regional general supervising officer (Education Law § 2215, performing functions on behalf of the Commissioner of Education) and the chief executive officer of the local BOCES (Education Law § 1950(1), (2)).

District superintendent compensation: a state-paid salary (Education Law § 2209) plus any compensation the BOCES sets (Education Law § 1950(4)(a)(1)). Staff investigators on the district superintendent's staff are paid only by the BOCES.

The integrity officer role is an SED administrative directive. The Commissioner has directed each district superintendent to designate an integrity officer for the supervisory district. The integrity officer assists the State with investigations into test security breaches, working under the State Education Department's Test Security Unit. The investigations cover alleged misconduct by school administrators or teachers in administering or scoring state assessments.

Statutory responsibilities of the district superintendent that overlap with the test security role: Education Law § 2215(9) (conduct examinations at the Commissioner's direction), § 2215(10) (examine charges affecting the moral character of teachers in the district), and § 2215(14) (make investigations and reports the Commissioner requests). Test security investigation falls within these responsibilities.

The defense-and-indemnification framework: 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, or a volunteer expressly authorized to participate in a state-sponsored volunteer program, but shall not include an independent contractor." Subsection (2)(a) provides for state defense in any civil action within the scope of public duties (excluding actions brought by the state). Subsection (3)(a) provides for indemnification of judgments and settlements except those arising from intentional wrongdoing.

The Court of Appeals decision framing this analysis: Matter of O'Brien v. Spitzer, 7 N.Y.3d 239 (2006). The "supervision, direction, or control" test for who is an employee comes through a long line of cases that includes In re 12 Cornelia Street, Inc., 56 N.Y.2d 895 (1982).

Citations

The defining statute: Public Officers Law § 17, particularly subsections (1), (1)(a), (2)(a), (3)(a). Education Law provisions establishing the district superintendent's role and BOCES structure: §§ 1950(1), 1950(2), 1950(4)(a)(1), 2201, 2209, 2215. Specifically, § 2215(9), (10), (14) for examination, character investigation, and Commissioner-requested investigations. Controlling case authority: Matter of O'Brien v. Spitzer, 7 N.Y.3d 239 (2006); In re 12 Cornelia Street, Inc., 56 N.Y.2d 895 (1982). Related prior AG opinion: Op. Att'y Gen. No. 97-F10 (district superintendent eligible for § 17 coverage when sued in connection with state-mandated duties).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/2013-f1_pw.pdf

Original opinion text

Public Officers Law §§ 17, 17(1), 17(1)(a), 17(2)(a), 17(3)(a); Education Law §§ 1950(1), 1950(2), 1950(4)(a)(1), 2201, 2209, 2215, 2215(9), 2215(10), 2215(14)

A member of the staff of the BOCES district superintendent who is serving as integrity officer under the supervision of State Education Department is eligible for state-provided defense and indemnification.

June 27, 2013

Richard J. Trautwein
Counsel & Deputy Commissioner
for Legal Affairs
State Education Department
University of the State of New York
Albany, New York 12234

Formal Opinion
No. 2013-F1

Dear Mr. Trautwein:

You have requested an opinion as to whether certain employees of boards of cooperative educational services (BOCES) 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.

For educational administrative purposes, the state is divided into supervisory districts. Education Law § 2201. A district superintendent is the general supervising officer of a supervisory district, with responsibility for performing certain functions on behalf of the Commissioner of Education. Education Law § 2215. The district superintendent also serves a local function as the chief executive officer for the BOCES, the jurisdiction of which is the supervisory district. Education Law § 1950(1),(2).

You have explained that the Commissioner of Education has directed district superintendents to designate an integrity officer for their supervisory districts. The integrity officer assists the State with investigations into test security breaches. Under the supervision of the Department of Education's Test Security Unit, an integrity officer investigates alleged misconduct by school administrators or teachers in the administration and scoring of state assessments in his or her supervisory district. In some instances, the district supervisor has designated him- or herself the integrity officer; in others, the district supervisor has designated one of his or her staff. You have asked about the eligibility for state-provided defense and indemnification of an integrity officer designated from a district superintendent's staff when performing test security breach investigations on the State's behalf.

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 employees "hold[ ] a position by election, appointment or employment in the service of the state . . . whether or not compensated." Id. § 17(1)(a).

As an initial matter, we previously have concluded that a district superintendent is eligible for state-provided defense and indemnification when sued in connection with his or her duties and responsibilities on behalf of the State. Op. Att'y Gen. No. 97-F10. We agree with your assessment that a district superintendent is eligible for defense and indemnification pursuant to Public Officers Law § 17 when he or she performs test security investigations at the direction of the Commissioner and under the supervision of the Department of Education. The statutory responsibilities of a district superintendent include conducting examinations at the direction of the Commissioner, examining charges affecting the moral character of teachers employed or residing in the supervisory district, and making such investigations and reports as the Commissioner requests. Education Law § 2215(9),(10),(14). Test security investigation falls within these responsibilities. The district superintendent thus is in the service of the State when conducting a test security breach investigation on the Commissioner's behalf.

We are of the opinion that an integrity officer who is a member of the district superintendent's staff also is in the service of the State when performing these duties. The integrity officer performs the same work on behalf of the Commissioner of Education whether he or she is the district superintendent or a member of his or her staff. He or she works closely with the Department of Education's Test Security Unit, performing investigations developed in consultation with and reporting tasks and findings to that Unit. An integrity officer who is a staff member has the additional supervision of the district superintendent, but the work performed on behalf of and under the supervision of the State is the same.

A district superintendent receives an annual salary from the State, in addition to any compensation the BOCES of his supervisory district establishes for him. Education Law §§ 1950(4)(a)(1), 2209. In contrast, the compensation of an investigator on the district superintendent's staff is paid only by the BOCES, with no portion of it coming from the State. But the absence of a state salary is not fatal to the conclusion that a staff investigator, when performing a test security investigation, is an employee of the State for purposes of Public Officers Law § 17. First, Public Officers Law § 17 specifically recognizes that a person can be an "employee" without being compensated by the State. Public Officers Law § 17(1) (term "employee" includes "any person holding a position by election, appointment or employment in the service of the state, . . . whether or not compensated"). Second, the staff investigator, when performing investigations into potential test security breaches, is subject to the direction and control of the State, via the officers and employees of the Department of Education, rather than that of the BOCES. The exercise of supervision, direction, or control over the means used to achieve results is a hallmark of an employer's relationship with an employee. See Matter of O'Brien v. Spitzer, 7 N.Y.3d 239, 242 (2006); In re 12 Cornelia Street, Inc., 56 N.Y.2d 895 (1982). For these reasons, we are of the opinion that the staff investigators are eligible for defense and indemnification pursuant to Public Officers Law § 17 when investigating test security breaches on behalf of the State.

Very truly yours,

ERIC T. SCHNEIDERMAN
Attorney General