NYCL AGO 95-6.

• Case Date: February 02, 1995
• Court: New York

New York Attorney General Opinions 1995. AGO 95-6. February 2, 1995Informal Opinion No. 95-6John C. Jilnicki, Esq. Deputy Town Attorney Town of East Hampton 15 9 Pantigo Road East Hampton, NY 11937PUBLIC OFFICERS LAW §§ 17, 18; TOWN LAW § 65.Under section 18 of the Public Officers Law and the town code, a town is authorized to provide defense to one of its employees if the complaint alleges behavior within the scope of the employee's duties or upon a factual determination that this is the case by the town board.Dear Mr. Jilnicki: You have asked several questions relating to the defense of a town official under section 18 of the Public Officers Law (your town code parallels its provisions). You have explained that a member of the town board was sued for defamation in State court by the chief of police arising out of statements allegedly made by the defendant to newspaper reporters. You have described the context in which the statements were made. This, however, is a question of fact which need not be defined for purposes of answering the questions of law that you have raised and is appropriately left to the town board which ultimately must decide whether provision of defense is appropriate. You have asked whether the town board has discretion under Public Officers Law § 18 to provide the town officer with a defense in the defamation action where the complaint fails to allege unlawful conduct within the scope of the defendant's employment. Second, in these circumstances, you ask whether the town board must accept the opinion of its town attorney as to whether the officer is entitled to a defense. Finally, you ask whether the town board has discretion under section 18 to refuse to pay defense costs pending a determination as to whether the defendant was acting within the scope of his employment. Section 18 of the Public Officers Law authorizes and establishes the procedure for defense and indemnification of local government officers and employees. It applies upon the affirmative decision of the local governing body to confer its benefits upon its employees. Under section 18, a local government must provide for the defense of an employee

in any civil action or proceeding, state or federal, arising out of any alleged act or omission which occurred or allegedly occurred while the employee was acting within the scope

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