PUBLIC OFFICERS LAW
Laws 1909, Chap. 51.
AN ACT in relation to public officers, constituting chapter forty-
seven of the consolidated laws.
Became a law February 17, 1909, with the approval of the
Governor. Passed, three-fifths being present.
The People of the State of New York, represented in Senate and
Assembly, do enact as follows:
CHAPTER 47 OF THE CONSOLIDATED LAWS
PUBLIC OFFICERS LAW
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ARTICLE 2
Appointment and Qualification of Public Officers
Section 3. Qualifications for holding office.
3-a. Restrictions upon holding public office or
employment of persons removed from office for
certain reasons.
3-b. Special peace officers to be citizens.
4. Commencement of term of office.
5. Holding over after expiration of term.
6. Mode of choosing state officers if not
otherwise provided.
7. Appointment by the governor and senate.
8. Commissions of officers.
9. Deputies, their appointment, number and
duties.
10. Official oaths.
11. Official undertakings.
12. Force and effect of official undertaking.
13. Notice of neglect to file oath or
undertaking.
14. Effect of consolidation on terms of office.
15. Validation of official acts performed before
filing official oath or undertaking.
16. Qualifications of certain judicial officers
in cities of the first class.
17. Defense and indemnification of state officers
and employees.
18. Defense and indemnification of officers and
employees of public entities.
19. Reimbursement of defense costs incurred by or
on behalf of state employees.
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Section 3. Qualifications for holding office.
1. No person shall be capable of holding a civil office who
shall not, at the time he shall be chosen thereto, have
attained the age of eighteen years, except that in the case
of youth boards, youth commissions or recreation commissions
only, members of such boards or commissions may be under the
age of eighteen years, but must have attained the age of
sixteen years on or before appointment to such youth board,
youth commission or recreation commission, be a citizen of
the United States, a resident of the state, and if it be a
local office, a resident of the political subdivision or
municipal corporation of the state for which he shall be
chosen, or within which the electors electing him reside, or
within which his official functions are required to be
exercised, or who shall have been or shall be convicted of a
violation of the selective draft act of the United States,
enacted May eighteenth, nineteen hundred seventeen, or the
acts amendatory or supplemental thereto, or of the federal
selective training and service act of nineteen hundred forty
or the acts amendatory thereof or supplemental thereto.
2. Neither the provisions of this section or of any general,
special or local law, charter, code, ordinance, resolution,
rule or regulation, requiring a person to be a resident of
the political subdivision or municipal corporation of the
state for which he shall be chosen or within which his
official functions are required to be exercised, shall apply
to the appointment of a person as a member of the police
force of any political subdivision or municipal corporation
of the state if such person resides (a) in the county in
which such political subdivision or municipal corporation is
located; or (b) in a county within the state contiguous to
the county in which such political subdivision or municipal
corporation is located; or (c) in a county within the state
contiguous to such political subdivision or municipal
corporation; or (d) in a county within the state contiguous
to a county described in item (c) hereof where the former is
less than fifteen miles from such political subdivision or
municipal corporation, measured from their respective
nearest boundary lines; or (e) in a county within the state
contiguous to a county described in item (d) hereof where
the former is less than thirty miles from such political
subdivision or municipal corporation, measured from their
respective nearest boundary lines.
2-a. Neither the provisions of this section, nor of any general,
special or local law, charter, code, ordinance, resolution,
rule or regulation, requiring a person to be a resident of
the political subdivision or municipal corporation of the
state for which he shall be chosen or within which his
official functions are required to be exercised, shall apply
to the appointment of a member of the department of
sanitation of any municipality of the state who resides in a
county within the state contiguous to such municipality.
2-b. Neither the provisions of this section, nor of any general,
special or local law, charter, code, ordinance, resolution,
rule or regulation, requiring a person to be a resident of
the political subdivision or municipal corporation of the
state for which he shall be chosen or within which his
official functions are required to be exercised, shall apply
to the appointment of an officer or employee of the parole
commission of an municipality of the state if such person
resides (a) in a county in which such political subdivision
or municipal corporation is located; or (b) in a county
within the state contiguous to the county in which such
political subdivision or municipal corporation is located;
or (c) in a county within the state contiguous to such
political subdivision or municipal corporation; or (d) in a
county within the state contiguous to a county described in
item (c) hereof where the former is less than fifteen miles
from such political subdivision or municipal corporation,
measured from their respective nearest boundary lines.
2-b. Neither the provisions of this section, nor of any general,
special or local law, charter, code, ordinance, resolution,
rule or regulation, requiring a person to be a resident of
the political subdivision of the state for which he shall be
chosen, shall apply to the appointment of a person, as an
emergency special deputy sheriff, by the sheriff of a county
who has declared a state of special emergency pursuant to
section two hundred nine-f of the general municipal law, if
such person is at the time either a regular, part time or
special deputy sheriff of another county.
3. Nothing herein contained shall operate to prevent a person
regularly admitted to practice as an attorney and counsellor
in the courts of record of this state, whose office for the
practice of law is within the state, from accepting or
retaining an appointment as a notary public, as provided in
section one hundred thirty of the executive law, although he
resides in or removes to an adjoining state. For the
purposes of accepting and retaining an appointment as a
notary public such person shall be deemed a resident of the
county where he maintains such office for the practice of
law.
3-a. Nothing herein contained shall operate to prevent a person
regularly admitted to practice as an attorney and counsellor
in the courts of record of this state, whose office for the
practice of law is within the city of New York, from
accepting or retaining an appointment as a commissioner of
deeds in and for the city of New York, as provided in
section one hundred forty of the executive law, although he
resides in or removes to another city in this state or to an
adjoining state. For the purposes of accepting and retaining
an appointment as a commissioner of deeds in and for the
city of New York, such person shall be deemed a resident of
the county where he maintains such office.
4. Except as otherwise provided in subdivision nine of this
section, persons heretofore or hereafter employed in the
paid fire department of a city, town, village or fire
district shall not be deemed to be holding a civil office or
a local office within the meaning of this section and the
provisions of this section shall not apply to such persons.
The provisions of any general, special or local law, city or
village charter, code or ordinance, or any rule or
regulation requiring a person to be a resident of the
political subdivision or municipal corporation of the state
for which he shall be chosen or within which his official
functions are required to be exercised shall not apply to
the appointment or continuance in office of any such person
so employed, if such person resides in the county, or one of
the counties, in which such political subdivision or
municipal corporation is located.
5. Volunteer firemen and volunteer fire officers of a fire
department or any company or unit thereof shall not be
deemed to be holding a civil office or a local office within
the meaning of this section and the provisions of this
section shall not apply to such volunteer firemen and
volunteer fire officers. This subdivision shall not be
deemed to amend, modify or supersede any other general,
special or local law, city or village charter, code or
ordinance, or any rule or regulation governing any such fire
department, which prescribes the qualifications which a
person must have to be a volunteer fireman or a volunteer
fire officer of a political subdivision or municipal
corporation.
6. The provisions of this section requiring a person to be a
resident of the political subdivision or municipal
corporation of the state for which he shall be chosen or
within which his official functions are required to be
exercised, shall not apply to the appointment of trustees of
a public village library, who reside outside the village in
which such library is located.
7. Nothing herein contained shall operate to prevent a person
regularly admitted to practice as an attorney and counsellor
in the courts of record of this state, whose office for the
practice of law is within the state, from accepting or
retaining an appointment as a commissioner of deeds in and
for the city of New York, as provided in section one hundred
forty of the executive law, although he resides in or
removes to any other county in the state or an adjoining
state. For the purposes of accepting and retaining an
appointment as a commissioner of deeds such person shall be
deemed a resident of the county where he maintains such
office for the practice of law.
8. The provisions of this section requiring a person to be a
resident of the political subdivision or municipal
corporation of the state for which he shall be chosen, or
within which his official functions are required to be
exercised, shall not apply in the case of any probation
officers heretofore or hereafter appointed; nor shall they
be applicable in the case of any other persons heretofore or
hereafter appointed to non-judicial positions in the courts
in this state, except those appointed to positions in courts
for towns, villages and cities outside the city of New York.
This subdivision shall not be deemed to amend, modify or
supersede any other general, special or local law, charter,
code or ordinance, or any rule or regulation which
prescribes the qualifications which a person must have to be
appointed to a position referred to herein.
9. Neither the provisions of this section, nor of any general,
special or local law, charter, code, ordinance, resolution,
rule or regulation, requiring a person to be a resident of
the political subdivision or municipal corporation of the
state for which he shall be chosen or within which his
official functions are required to be exercised, shall apply
to the appointment of a paid member of the uniformed force
of a paid fire department or to the appointment of any
person employed in a department of correction in the
correction service classification of the classified civil
service, or to the appointment of officers and inspectors
who are employees of a department of health of any city of
over one million population who resides (a) in the county in
which such city is located; or (b) in a county within the
state contiguous to the county in which said city is
located; or (c) in a county within the state contiguous to
such city; or (d) in a county within the state which is not
more than fifteen miles from said city.
10. Neither the provisions of this section, nor of any general,
special or local law, charter, code or ordinance,
resolution, rule or regulation, requiring a person to be a
resident of the political subdivision or municipal
corporation of the state for which he shall be chosen or
within which his official functions are required to be
exercised, shall apply to the appointment of a member of a
drug abuse prevention council of any municipality of the
state if such person resides in a county in which such
political subdivision or municipal corporation is located.
11. In the city of Salamanca the provisions of this section
requiring a person to be a resident of the political
subdivision or municipal corporation of the state for which
he shall be chosen or within which his official functions
are required to be exercised, shall not prevent a person
regularly admitted to practice as an attorney or counsellor
in the courts of record of this state from holding the
office of city attorney or city justice of the city of
Salamanca, if such person resides in the county in which
such city is located.
12. The provisions of this section or of any other provision of
law requiring a person to be a resident of the political
subdivision or municipal corporation of the state for which
he shall be chosen or within which his official functions
are required to be exercised, shall not apply to the
appointment of public officers in the city of Troy, except
the city manager of such city, provided that such appointed
officers are residents of the county of Rensselaer.
13. In the city of Hudson the provisions of this section
requiring a person to be a resident of the political
subdivision or municipal corporation of the state for which
he shall be chosen or within which his official functions
are required to be exercised, shall not prevent a person
from holding the office of city court judge of the city of
Hudson, provided that such person resides in the county in
which such city is located.
14. In the town of Mount Pleasant, Westchester county, the
provisions of this section requiring a person to be a
resident of the political subdivision or municipal
corporation of the state for which he shall be chosen or
within which his official functions are required to be
exercised, shall not prevent a person from holding the
office of town engineer of the town of Mount Pleasant,
provided that such person resides in the county in which
such town is located or an adjoining county within the state
of New York.
15. In the town of North Castle, Westchester county, the
provisions of this section requiring a person to be a
resident of the political subdivision or municipal
corporation of the state for which he shall be chosen or
within which his official functions are required to be
exercised, shall not prevent a person from holding the
office of town engineer of the town of North Castle,
provided that such person resides in the county in which
such town is located or an adjoining county within the state
of New York.
16. In the town of New Castle, Westchester county, the
provisions of this section requiring a person to be a
resident of the political subdivision or municipal
corporation of the state for which he shall be chosen or
within which his official functions are required to be
exercised, shall not prevent a person from holding the
office of town superintendent of highways or town engineer
of the town of New Castle, provided that such person resides
in the county in which such town is located or an adjoining
county within the state of New York or such town provides by
resolution that such person need not be a resident of such
town, but must be a resident of New York state.
17. In the town of North Salem, Westchester county, the
provisions of this section requiring a person to be a
resident of the political subdivision or municipal
corporation of the state for which he shall be chosen or
within which his official functions are required to be
exercised, shall not prevent a person from holding the
office of town building inspector or deputy town building
inspector of the town of North Salem, provided that such
person resides in the county in which such town is located
or an adjoining county within the state of New York.
18. In the town of Mount Pleasant, Westchester county, the
provisions of this section requiring a person to be a
resident of the political subdivision or municipal
corporation of the state for which he shall be chosen or
within which his official functions are required to be
exercised, shall not prevent a person from holding the
office of comptroller or building inspector of the town of
Mount Pleasant, provided that such person resides in the
county in which such town is located or an adjoining county
within the state of New York.
19. Any person who resides in this state and who is currently
employed as a member of the police force, a paid member of
the uniformed force of a paid fire department or department
of corrections in the correctional service classification of
the classified civil service, of a city of over one million
population, shall be exempt from the provisions of
subdivisions one, two and nine of this section upon
compliance with the procedure set forth in this subdivision.
Any person seeking to benefit from the exemption created by
this subdivision shall notify his respective employer in
writing of said intention within thirty days from the
effective date of this subdivision and shall specify his
then current residence address. The exemption created by
this subdivision shall be applicable only to said actual
designated residence and not to any residence that any
subject currently employed member may thereafter establish;
provided, however, that any such currently employed member
who resides outside this state shall have one year from the
effective date of this subdivision within which to establish
residence as required pursuant to subdivisions one, two and
nine of this section and comply with the notice requirements
of this subdivision. Said residence shall constitute a
lawful residence for all purposes notwithstanding any
provision to the contrary of any general, special or local
law, charter, code, ordinance, resolution, rule or
regulation.
*20. In the town of Carmel, Putnam county, the provisions of this
section requiring a person to be a resident of the political
subdivision or municipal corporation of the state for which
he shall be chosen or within which his official functions
are required to be exercised, shall not prevent a person
from holding the office of town engineer of the town of
Carmel or the office of wetlands inspector of the town of
Carmel provided that such person resides in the county in
which such town is located or an adjoining county within the
state of New York.
* NB There are 4 sub 20's
*20. In the town of Bolivar, Allegany county, the provisions of
this section requiring a person to be a resident of the
political subdivision or municipal corporation of the state
for which he shall be chosen or within which his official
functions are required to be exercised, shall not prevent a
person from holding the office of town superintendent of
highways of the town of Bolivar, provided that such person
resides in the county in which such town is located.
* NB There are 4 sub 20's
*20. In the city of Ithaca, Tompkins county, the provisions of
this section requiring a person to be a resident of the
political subdivision or municipal corporation of the state
for which he shall be chosen or within which his official
functions are required to be exercised, shall not prevent a
person from holding the office of member of the board of
fire commissioners of the city of Ithaca, provided that such
person resides in the county in which such city is located
and within the town of Ithaca.
* NB There are 4 sub 20's
*20. In the town of Mamaroneck, Westchester county, the
provisions of this section requiring a person to be a
resident of the political subdivision or municipal
corporation of the state for which he shall be chosen or
within which his official functions are required to be
exercised, shall not prevent a person from holding the
office of deputy town clerk of the town of Mamaroneck,
provided that such person resides in the county in which
such town is located or an adjoining county within the state
of New York.
* NB There are 4 sub 20's
21. In the town of Lewisboro, Westchester county, the provisions
of this section requiring a person to be a resident of the
political subdivision or municipal corporation of the state
for which he shall be chosen or within which his official
functions are required to be exercised, shall not prevent a
person from holding the office of town engineer of the town
of Lewisboro provided that such person resides in the county
in which such town is located or an adjoining county within
the state of New York.
22. In the town of Lewisboro, Westchester county, the provisions
of this section requiring a person to be a resident of the
political subdivision or municipal corporation of the state
for which he shall be chosen or within which his official
functions are required to be exercised, shall not prevent a
person from holding the office of town building inspector or
deputy town building inspector of the town of Lewisboro
provided that such person resides within the state of New
York.
23. In the town of Sweden, Monroe county, the provisions of this
section requiring a person to be a resident of the political
subdivision or municipal corporation of the state for which
he shall be chosen or within which his official functions
are required to be exercised, shall not prevent a person
from holding the office of court clerk of the town of
Sweden, provided that such person resides in the county in
which such town is located or an adjoining county within the
state of New York.
*24. In the town of Greenburgh, Westchester county, the
provisions of this section requiring a person to be a
resident of the political subdivision or municipal
corporation of the state for which he shall be chosen or
within which his official functions are required to be
exercised shall not prevent a person from holding any
appointed public office, provided that such person resides
in the state of New York.
* NB There are 3 sb 24's
*24. In the town of Ogden, Monroe county, the provisions of this
section requiring a person to be a resident of the political
subdivision or municipal corporation of the state for which
he shall be chosen or within which his official functions
are required to be exercised, shall not prevent a person
from holding the office of court clerk of the town of Ogden,
provided that such person resides in the county in which
such town is located or an adjoining county within the state
of New York.
* NB There are 3 sb 24's
*24. In the towns of Aurora, Holland and Marilla, Erie county,
the provisions of this section requiring a person to be a
resident of the political subdivision or municipal
corporation of the state for which he shall be chosen or
within which his official functions are required to be
exercised, shall not prevent a person from holding the
office of court clerk to the justices of the towns of
Aurora, Holland and Marilla provided that such person
resides in the county in which such town is located or an
adjoining county within the state of New York.
* NB There are 3 sb 24's
25. In the town of Patterson, Putnam county, the provisions of
this section requiring a person to be a resident of the
political subdivision or municipal corporation of the state
for which he shall be chosen or within which his official
functions are required to be exercised, shall not prevent a
person from holding the office of wetlands inspector
provided that such person resides in the county in which
such town is located or an adjoining county within the state
of New York.
26. In the town of Ithaca, Tompkins county, the provisions of
this section requiring a person to be a resident of the
political subdivision or municipal corporation of the state
for which he shall be chosen or within which his official
functions are required to be exercised, shall not prevent a
person from holding the office of town engineer of the town
of Ithaca provided that such person resides in the county in
which such town is located or an adjoining county within the
state of New York.
27. In the town of Bedford, Westchester county, the provisions
of this section requiring a person to be a resident of the
political subdivision or municipal corporation of the state
for which he shall be chosen or within which his official
functions are required to be exercised, shall not prevent a
person from holding the office of court clerk, deputy court
clerk or any position within the court clerk's office of the
town of Bedford.
28. In respect to public officers employed by Westchester
county, the provisions of this section requiring a person to
be a resident of the political subdivision or municipal
corporation of the state for which he or she shall be chosen
or within which his or her official functions are required
to be exercised shall not prevent a person from holding any
appointed public office, provided that such person resides
in the state of New York.
29. In the town of Somers, Westchester county, the provisions of
this section requiring a person to be a resident of the
political subdivision or municipal corporation of the state
for which he shall be chosen or within which his official
functions are required to be exercised, shall not prevent a
person from holding the office of town engineer of the town
of Somers.
30. In the town of Pound Ridge, Westchester county, the
provisions of this section requiring a person to be a
resident of the political subdivision or municipal
corporation of the state for which he shall be chosen or
within which his official functions are required to be
exercised, shall not prevent a person from holding the
office of town building inspector or town superintendent of
highways and their deputies of the town of Pound Ridge
provided that such persons reside in a town contiguous to
the town of Pound Ridge and within the county of
Westchester, state of New York.
31. In the town of Victor, Ontario county, the provisions of
this section requiring a person to be a resident of the
political subdivision or municipal corporation of the state
for which he or she shall be chosen or within which his or
her official functions are required to be exercised, shall
not prevent a person from holding the office of court clerk
of the town of Victor, provided that such person resides in
an adjoining town in the county in which such town is
located.
32. In the village of Penn Yan, Yates county, the provisions of
this section requiring a person to be a resident of the
political subdivision or municipal corporation of the state
for which he shall be chosen or within which his official
functions are required to be exercised, shall not prevent a
person from holding the office of justice court clerk of the
village of Penn Yan, provided that such person resides in
the county in which such village is located or an adjoining
county within the state of New York.
32. In the town of North East, Dutchess county, the provisions
of this section requiring a person to be a resident of the
political subdivision or municipal corporation of the state
for which he shall be chosen or within which his official
functions are required to be exercised, shall not prevent a
person from holding the office of town engineer of the town
of North East, provided that such person resides in the
county in which such town is located or an adjoining county
within the state of New York.
33. In the Flint Creek Small Watershed Protection district in
the counties of Ontario and Yates, the provisions of this
section requiring a person to be a resident of the political
subdivision or municipal corporation of the state for which
he shall be chosen or within which his official functions
are required to be exercised, shall not prevent a person
from holding a district office, provided that such person
owns real property within the district boundaries.
34. In the town of Hamlin, county of Monroe, the provisions of
this section requiring a person to be a resident of the
political subdivision or municipal corporation of the state
for which he or she shall be chosen or within which his or
her official functions are required to be exercised, shall
not prevent a person from holding the office of court clerk
of the town of Hamlin, provided that such person resides in
the county in which such town is located or an adjoining
county within the state of New York.
34. In the village of Goshen, Orange county, the provisions of
this section requiring a person to be a resident of the
political subdivision or municipal corporation of the state
for which he shall be chosen or within which his official
functions are required to be exercised, shall not prevent a
person from holding the office of treasurer of the village
of Goshen, provided that such person resides within the
state of New York.
34. In the town of Grove, Allegany county, the provisions of
this section requiring a person to be a resident of the
political subdivision or municipal corporation of the state
for which he or she shall be chosen or within which his or
her official functions are required to be exercised, shall
not prevent a person from holding the office of town justice
of the town of Grove, provided that such person resides in
the county in which such town is located. Provided, however,
the person performing the functions of town justice in any
other town shall be a resident of such town unless otherwise
provided by an act of the state legislature.
35. Nothing herein contained shall operate to prevent an
otherwise qualified officer or agent of any society for the
prevention of cruelty to children having its principal
office located within a city with a population of one
million or more from accepting or retaining appointment as a
peace officer with such society when such officer or agent
satisfies the provisions as to residence set forth in
subdivision two of this section.
36. In the village of Arkport, Steuben county, the provisions of
this section requiring a person to be a resident of the
political subdivision or municipal corporation of the state
for which he shall be chosen or within which his official
functions are required to be exercised, shall not prevent a
person from holding the office of clerk/treasurer of the
village of Arkport, provided that such person resides in the
county in which such village is located or an adjoining
county within the state of New York.
37. In the town of Independence, Allegany county, the provisions
of this section requiring a person to be a resident of the
political subdivision or municipal corporation of the state
for which such person shall be chosen or within which such
person's official functions are required to be exercised,
shall not prevent a person from holding the office of town
justice of the town of Independence, provided that such
person resides in the county in which such town is located.
Provided, however, the person performing the functions of
town justice in any other town shall be a resident of such
town, unless otherwise provided by an act of the state
legislature.
38. In the county of Yates, the provisions of this section
requiring a person to be a resident of the political
subdivision or municipal corporation of the state for which
he shall be chosen or within which his official functions
are required to be exercised, shall not prevent a person
from holding the office of assistant district attorney of
the county of Yates, other than the first assistant district
attorney, provided that such person resides in Yates county
or an adjoining county within the state of New York.
Sec. 3-a. Restrictions upon holding public office or employment
of persons removed from office for certain reasons.
Any public officer who, upon being called before a grand jury to
testify concerning the conduct of his office or the performance
of his official duties, refuses to sign a waiver of immunity
against subsequent criminal prosecution, or to answer any
relevant question concerning such matters before such grand jury
and who, by virtue thereof, has been removed from such public
office by the appropriate authority or who has forfeited such
office at the suit of the attorney general shall not be capable
of holding a civil office or public employment for a period of
five years from the date of the removal from or forfeit of such
public office.
Section 3-b. Special peace officers to be citizens.
No sheriff of a county, mayor of a city, or official, or other
persons authorized by law to appoint special deputy sheriffs,
special constables, marshals, police officers, or peace officers
in this state, to preserve the public peace or quell public
disturbance, shall hereafter, at the instance of any agent,
society, association or corporation, or otherwise, appoint as
such special deputy, special constable, marshal, police officer,
or peace officer, any person who shall not be a citizen of the
United States and a resident of the state of New York, and
entitled to vote therein at the time of his appointment, and a
resident of the same county as the mayor or sheriff or other
official making such appointment; provided, however, that when,
in the judgment of a sheriff of a county except those counties
within the city of New York a situation exists which requires
temporary additional assistance, such sheriff may appoint special
deputy sheriffs who are non-residents of the county but residents
of the state of New York who shall hold office until such time as
the appointing sheriff determines that the situation no longer
exists; and no person shall assume or exercise the functions,
powers, duties or privileges incident and belonging to the office
of special deputy sheriff, special constables, marshal, police
officer, or peace officer, without having first received his
appointment in writing from the authority lawfully appointing
him. Nothing herein contained, however, shall apply to the
appointment of a non-resident, as an emergency special deputy
sheriff, by the sheriff of any county to act when such sheriff
has declared a state of special emergency pursuant to the
provisions of section two hundred nine-f of the general municipal
law. Any person otherwise qualified who resides in either the
county of Nassau or the county of Suffolk may at the instance of
a society for the prevention of cruelty to animals be appointed
as a peace officer by the appropriate appointing official of
either of such counties notwithstanding that such appointee does
not reside in the same county as the appointing official.
A violation of the provisions of this section is a misdemeanor.
Sec. 4. Commencement of term of office.
1. The term of office of an elective officer, unless elected to
fill a vacancy then existing, shall commence on the first
day of January next after his election, if the commencement
thereof be not otherwise fixed by law.
2. All terms of city officers, including supervisors, elected
in any city or part of a city, and of county officers in the
city of New York, shall expire at the end of an odd-numbered
year. Such officers shall be elected, except to fill a
vacancy, at the general election in odd-numbered years. This
subdivision shall not apply to any judicial officer.
Sec. 5. Holding over after expiration of term.
Every officer except a judicial officer, a notary public, a
commissioner of deeds and an officer whose term is fixed by the
constitution, having duly entered on the duties of his office,
shall, unless the office shall terminate or be abolished, hold
over and continue to discharge the duties of his office, after
the expiration of the term for which he shall have been chosen,
until his successor shall be chosen and qualified; but after the
expiration of such term, the office shall be deemed vacant for
the purpose of choosing his successor. An officer so holding over
for one or more entire terms, shall, for the purpose of choosing
his successor, be regarded as having been newly chosen for such
terms. An appointment for a term shortened by reason of a
predecessor holding over, shall be for the residue of the term
only.
Sec. 6. Mode of choosing state officers if not otherwise
provided.
If the law shall not otherwise provide the mode of choosing a
state officer, he shall be appointed by the governor by and with
the advice and consent of the senate.
Sec. 7. Appointment by the governor and senate.
An appointment to an office by the governor by and with the
advice and consent of the senate, shall be made by communicating
to the senate, while in session, a written nomination of a person
for the office, designating the residence of the nominee, and if
nominated to be an officer of a political subdivision of the
state, designating also such subdivision, and if nominating two
or more persons to the same office for different terms,
designating the term for which each is nominated. If such
nomination be of a successor to a predecessor in the same office,
it may be made and acted upon by the senate after the expiration
of the term or occurrence of a vacancy in the office of such
predecessor, or at any time during the legislative session of the
calendar year in which the term of office of such predecessor
shall expire or in which the office shall become vacant. If the
appointment be made before the expiration of the term of such
predecessor, the term of office of the appointee shall commence
upon the expiration of the term of such predecessor, or if made
to fill a vacancy, upon the occurrence of such vacancy, or
immediately if a vacancy already exist. If the senate shall
reject such nomination, the secretary of the senate shall
forthwith communicate, by writing, signed by him and by the
president of the senate, to the governor the fact of such
rejection. If the senate shall confirm such nomination the
appointment shall be deemed complete, and thereupon duplicate
certificates of the confirmation shall be made and signed by the
president and secretary of the senate, who shall cause one to be
delivered to the governor and the other to the secretary of
state, who shall record the same in his office in a book kept for
that purpose.
Sec. 8. Commissions of officers.
The commission of every officer appointed by the governor, or by
the governor by and with the consent of the senate, shall be
signed by the governor and attested under the seal of this state,
by the secretary of state, who shall make and record in his
office a copy of such commission, and deliver the original to the
officer appointed, by a messenger, if the governor shall so
direct, and otherwise, by mail, or as the secretary of state
shall deem proper. Commissions of notaries public shall be signed
by the secretary of state, or by a person or persons in the
department of state designated by the secretary of state, and
shall be sent to the county clerk of the county in which such
notaries public respectively reside. Commissions of commissioners
of deeds in other states, territories and foreign countries,
shall be signed by the secretary of state, or by a person or
persons in the department of state designated by secretary of
state. Every other appointment of an officer, made by one or more
state officers, shall be in writing, and signed by the officer or
officers, or by a majority of the officers, or by the presiding
officer of the board or body making the appointment. Every such
written appointment shall be deemed the commission of the officer
appointed, and if of a state officer, a duplicate or a certified
copy thereof shall be recorded in the office of the department of
state; if of a local officer it shall be sent to the clerk of the
county in which the officer appointed shall then reside, who
shall file the same in his office, and notify the officer
appointed of his appointment.
Sec. 9. Deputies, their appointment, number and duties.
Every deputy, assistant, or other subordinate officer, whose
appointment or election is not otherwise provided for, shall be
appointed by his principal officer, board or other body, and the
number thereof, if not otherwise prescribed by law, shall be
limited in the discretion of the appointing power. If there is
but one deputy, he shall, unless otherwise prescribed by law,
possess the powers and perform the duties of his principal during
the absence or inability to act of his principal, or during a
vacancy in his principal's office. If there be two or more
deputies of the same officer, such officer may designate, in
writing, the order in which the deputies shall act, in case of
his absence from the office or his inability to act, or in case
of a vacancy in the office, and if he shall fail to make such
designation, the deputy longest in office present shall so act.
If two or more deputies present shall have held the office for
the same period, the senior deputy in age shall so act. Such
written designation by a state officer shall be filed in the
office of the secretary of state; and by any other officer, in
the office of the clerk of the county in which the principal has
his office. If a vacancy in a public office shall be caused by
the death of the incumbent, the deputies shall, unless otherwise
provided by law, continue to hold office until the vacancy shall
have been filled in accordance with law.
Sec. 10. Official oaths.
Every officer shall take and file the oath of office required by
law, and every judicial officer of the unified court system, in
addition, shall file a copy of said oath in the office of court
administration, before he shall be entitled to enter upon the
discharge of any of his official duties. An oath of office may be
administered by a judge of the court of appeals, the attorney
general, or by any officer authorized to take, within the state,
the acknowledgment of the execution of a deed of real property,
or by an officer in whose office the oath is required to be filed
or by his duly designated assistant, or may be administered to
any member of a body of officers, by a presiding officer or
clerk, thereof, who shall have taken an oath of office. An oath
of office may be administered to any state or local officer who
is a member of the armed forces of the United States by any
commissioned officer, in active service, of the armed forces of
the United States. In addition to the requirements of any other
law, the certificate of the officer in the armed forces
administering the oath of office under this section shall state
(a) the rank of the officer administering the oath, and (b) that
the person taking the oath was at the time, enlisted, inducted,
ordered or commissioned in or serving with, attached to or
accompanying the armed forces of the United States. The fact that
the officer administering the oath was at the time duly
commissioned and in active service with the armed forces, shall
be certified by the secretary of the army, secretary of the air
force or by the secretary of the navy, as the case may be, of the
United States, or by a person designated by him to make such
certifications, but the place where such oath was administered
need not be disclosed. The oath of office of a notary public or
commissioner of deeds shall be filed in the office of the clerk
of the county in which he shall reside. The oath of office of
every state officer shall be filed in the office of the secretary
of state; of every officer of a municipal corporation, including
a school district, with the clerk thereof; and of every other
officer, including the trustees and officers of a public library
and the officers of boards of cooperative educational services,
in the office of the clerk of the county in which he shall
reside, if no place be otherwise provided by law for the filing
thereof.
Sec. 11. Official undertakings.
1. Every official undertaking, when required by or in pursuance
of law to be hereafter executed or filed by any officer,
shall be to the effect that he will faithfully discharge the
duties of his office and promptly account for and pay over
all moneys or property received by him as such officer, in
accordance with law, or in default thereof, that the parties
executing such undertaking will pay all damages, costs and
expenses resulting from such default, not exceeding a sum,
if any, specified in such undertaking. The undertaking of a
state officer or clerk or employee shall be approved by the
attorney-general as to its form and manner of execution and
by the comptroller as to the sufficiency of the sureties and
be filed in the comptroller's office. The undertaking of a
municipal officer shall, if not otherwise provided by law,
be approved as to its form and the sufficiency of the
sureties by the chief executive officer or by the governing
body of the municipality and be filed with the clerk
thereof. The approval by such governing body may be a
resolution, a certified copy of which shall be attached to
the undertaking. The undertaking of such county officer
shall, if not otherwise provided by law, be approved as to
its form and the sufficiency of the sureties by the clerk of
the county, and filed in his office, except that a duplicate
undertaking of a county clerk and county treasurer shall be
filed in the office of the state comptroller. The
undertaking of a town officer shall, if not otherwise
provided by law, be approved as to its form and the
sufficiency of the sureties by the clerk of the county and
filed in his office. The sum specified in an official
undertaking shall be the sum for which such undertaking
shall be required by or in pursuance of law is given. If no
sum, or a different sum from that required by or in
pursuance of law, be specified in the undertaking, it shall
be deemed to be an undertaking for the amount so required.
If no sum be required by or in pursuance of law to be so
specified, the officer or board authorized to approve the
undertaking shall fix the sum to be specified therein. Every
official undertaking shall be executed and duly acknowledged
by at least two sureties, each of whom shall add thereto his
affidavit that he is a freeholder or householder within the
state, stating his occupation and residence and the street
number of his residence and place of business if in a city,
and a sum which he is worth over and above his just debts
and liabilities and property exempt from execution. The
aggregate of the sums so stated in such affidavits must be
at least double the amount specified in the undertaking. If
the surety on an official undertaking of a state or local
officer, clerk or employee of the state or political
subdivision thereof or of a municipal corporation be a
fidelity or surety corporation, the reasonable expense of
procuring such surety, not exceeding one percentum per annum
upon the sum for which such undertaking shall be required by
or in pursuance of law to be given, shall be a charge
against the state or political subdivision or municipal
corporation respectively in and for which he is elected or
appointed, except that the expense of procuring such surety
as aforesaid, on an official undertaking of any officer,
clerk or employee in any city department of the city of New
York, or of any office, board or body of said city, or of a
borough or county within said city, including officers,
clerks and employees of every court within said city, shall
not be a charge upon said city or upon any of the counties
contained within said city, unless the comptroller of the
said city, shall first have approved the necessity of
requiring such official undertaking to be given, and shall
have approved of or fixed the amount of any such official
undertaking; but this exception shall not apply to an
official undertaking specifically required by statute to be
given, and the amount of which is specifically fixed by
statute. The failure to execute an official undertaking in
the form or by the number of sureties required by or in
pursuance of law, or of a surety thereto to make an
affidavit required by or in pursuance of law, or in the form
so required, or the omission from such an undertaking of the
approval required by or in pursuance of law, shall not
affect the liability of the sureties therein.
2. Notwithstanding the foregoing provisions of this section or
any other law, general, special or local, requiring an
official undertaking to be conditioned substantially to the
effect that an officer, clerk or employee will faithfully
discharge his duties and promptly account for and pay over
all moneys or property received by him in his official
capacity, it shall be permissible in lieu thereof, with the
consent and approval of the officer or governing body
authorized to require the undertaking, for any department or
agency of the state or any municipal corporation or district
corporation or department or agency thereof to procure a
blanket undertaking from any duly authorized corporate
surety covering officers, clerks and employees. Any such
blanket undertaking entered into on or after January first,
nineteen hundred seventy-eight shall indemnify against
losses:
(a) through the failure of the officers, clerks and
employees covered thereunder faithfully to perform
their duties or to account properly for all moneys or
property received by virtue of their positions or
employment, and
(b) through fraudulent or dishonest acts committed by the
officers, clerks and employees covered thereunder.
Notwithstanding any provisions of the civil practice law and
rules any such blanket undertaking entered into prior to
January first, nineteen hundred eighty-three may contain a
provision that no suit, action or proceeding of any kind to
recover on account of loss under such blanket undertaking
shall be brought after the expiration of three years from
the cancellation of such blanket undertaking as an entirety.
Any such blanket undertaking shall be approved as to its
form, manner of execution and sufficiency of the surety and
filed and the expense of procuring such surety paid in the
same manner as provided in subdivision one of this section.
The failure to execute such blanket undertaking in the form
required by law, or the omission of the approval required by
law, shall not affect the liability of the surety thereon.
3. Nothing herein contained shall be construed to prevent the
procuring of a blanket undertaking to cover the liability of
employees handling funds collected pursuant to the
provisions of section fifty of the vehicle and traffic law.
4. Notwithstanding the provisions of this section or any other
law, general or special, requiring an official undertaking
or bond to be conditioned substantially to the effect that a
state officer, clerk or employee will faithfully discharge
his duties and promptly account for and pay over all moneys
or property received by him in his official capacity, the
comptroller may, in his discretion, waive the requirement of
procuring such official undertaking or bond, and the expense
of procuring an official undertaking or bond shall not be a
charge upon the state unless the comptroller shall first
have approved the necessity of requiring such official
undertaking or bond.
Sec. 12. Force and effect of official undertaking.
An officer of whom an official undertaking is required, shall not
receive any money or property as such officer, or do any act
affecting the disposition of any money or property which such
officer is entitled to receive or have the custody of, before he
shall have filed such undertaking; and any person having the
custody or control of any such money or property shall not
deliver the same to any officer of whom an undertaking is
required until such undertaking shall have been given. If a
public officer required to give an official undertaking, enters
upon the discharge of any of his official duties before giving
such undertaking, the sureties upon his undertaking subsequently
given for or during his official term shall be liable for all his
acts and defaults done or suffered and for all moneys and
property received during such term prior to the execution of such
undertaking, or if a new undertaking is given, from the time
notice to give such new undertaking is served upon him. Every
official undertaking shall be obligatory and in force so long as
the officer shall continue to act as such and until his successor
shall be appointed and duly qualified, and until the conditions
of the undertaking shall have been fully performed. When an
official undertaking is renewed pursuant to law the sureties upon
the former undertaking shall not be liable for any official act
done or moneys received after the due execution, approval and
filing of the new undertaking.
Sec. 13. Notice of neglect to file oath or undertaking.
The officer or body making the appointment or certificate of
election of a public officer shall, if the officer be required to
give an official undertaking to be filed in an office other than
that in which the written appointment or certificate of election
is to be filed, forthwith give written notice of such appointment
or election to the officer in whose office the undertaking is to
be filed. If any officer shall neglect, within the time required
by law, to take and file an official oath, or execute and file an
official undertaking, the officer, with whom or in whose office
such oath or undertaking is required to be filed, shall forthwith
give notice of such neglect, if of an appointive officer, to the
authority appointing such officer; if of an elective officer, to
the officer, board or body authorized to fill a vacancy in such
office, if any, or if none and a vacancy in the office may be
filled by a special election, to the officer, board or body
authorized to call or give notice of a special election to fill
such vacancy; except that the notice of failure of a justice of
the peace to file his official oath, shall be given to the town
clerk of the town for which the justice was elected.
Sec. 14. Effect of consolidation on terms of office.
If an office be continued by the consolidated laws constituting
the consolidation of which this chapter is a part, the person
lawfully holding such office at the time of the taking effect of
such consolidated laws shall, subject to the provisions of such
consolidated laws, continue therein for the term for which he was
chosen, or if holding over after the expiration of his term,
until his successor shall be chosen and shall have qualified.
Sec. 15. Validation of official acts performed before filing
official oath or undertaking.
If a public officer, duly chosen, has heretofore entered, or
shall hereafter enter on the performance of the duties of his
office, without taking or filing an official oath, or executing
or filing an official undertaking, as required by the
constitution, or by any general or special law, his acts as such
officer, so performed, shall be as valid and of as full force and
effect as if such oath had been duly taken and filed, and as if
such undertaking had been duly executed and filed,
notwithstanding the provisions of any general or special law
declaring any such office vacant, or authorizing it to be
declared vacant, or to be filled as in case of vacancy, or
imposing any other forfeiture or penalty for omission to take or
file any such oath, or to execute or file any such undertaking;
but this section shall not otherwise affect any provision of any
general or special law, declaring any such office vacant, or
authorizing it to be declared vacant, or to be filled as in case
of vacancy, or imposing any other forfeiture or penalty, by
reason of the failure to take or file any such oath or to execute
or file any such undertaking; and this section shall not relieve
any such officer from criminal liability for entering on the
discharge of his official duties without taking or filing such
oath or executing or filing such undertaking.
Sec. 16. Qualifications of certain judicial officers in cities
of the first class.
A person shall be eligible for appointment to the office of
magistrate, judge or justice of an inferior court of criminal
jurisdiction in a city of the first class, who shall at the time
of such appointment be of full age, a citizen of the United
States, a resident of the city, an attorney and counsellor-at-law
admitted to practice for the period prescribed by special law, or
in lieu thereof shall have been a member of the legislature of
the state for at least twelve consecutive years, notwithstanding
the provisions of any general or special law inconsistent
herewith.
Sec. 17. Defense and indemnification of state officers and
employees.
1. (a) As used in this section, unless the context
otherwise requires the term "employee" shall mean any
person holding a position by election, appointment or
employment in the service of the state, including
clinical practice pursuant to subdivision fourteen of
section two hundred six of the public health law,
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 term employee shall include a former
employee, his estate or judicially appointed personal
representative and persons who assist the education
department or the department of health as consultants
or expert witnesses in the investigation or prosecution
of alleged professional misconduct, licensure matters,
restoration proceedings, or criminal prosecutions for
unauthorized practice pursuant to title eight of the
education law or title II-A of the public health law.
(b) For the purposes of this section, the term "employee"
shall include members, officers and other persons in
the employment of the New York state energy research
and development authority, members of the board of
directors, officers and other persons in the employment
of the New York state science and technology
foundation, and members of the board of directors,
officers and other persons in the employment of the New
York state olympic accommodations control corporation
or serving on its board of directors on or before June
thirtieth, nineteen hundred eighty.
(c) For the purposes of this section, the term "employee"
shall include members of the state patient
qualification review board appointed by the
commissioner of health pursuant to article thirty-three-
A of the public health law.
(d) For the purposes of this section, the term "employee"
shall include directors, officers and employees of the
facilities development corporation.
(e) For the purposes of this section, the term "employee"
shall include directors, officers and employees of the
environmental facilities corporation for corporate
projects involving (i) hazardous waste, (ii) industrial
solid waste activities as defined in section twelve
hundred eighty-five-g of the public authorities law,
and (iii) all other activities not covered by
professional liability insurance.
(f) For the purposes of this section, the term "employee"
shall include ombudsmen designated under section five
hundred forty-four and section five hundred forty-five
of the executive law, and shall include such ombudsmen
without regard to whether they are volunteers or paid
staff of the office for the aging or of designated
substate ombudsman programs under the direction of the
office.
(g) For the purposes of this section, the term "employee"
shall include the members of the board, officers and
employees of the greenway heritage conservancy for the
Hudson river valley or the greenway council.
(h) For the purposes of this section, the term "employee"
shall include members of the board, officers and
employees of the New York local government assistance
corporation.
(i)* For purposes of this section, the term "employee" shall
include the officers and employees of the Central Pine
Barrens joint planning and policy commission.
* NB Expires 95/03/13
2. (a) Upon compliance by the employee with the
provisions of subdivision four of this section, 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; or which is brought
to enforce a provision of section nineteen hundred
eighty-one or nineteen hundred eighty-three of title
forty-two of the United States code and the act or
omission underlying the action 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 state.
(b) Subject to the conditions set forth in paragraph (a) of
this subdivision, the employee shall be entitled to be
represented by the attorney general, provided, however,
that the employee shall be entitled to representation
by private counsel of his choice in any civil judicial
proceeding whenever the attorney general determines
based upon his investigation and review of the facts
and circumstances of the case that representation by
the attorney general would be inappropriate, or
whenever a court of competent jurisdiction, upon
appropriate motion or by a special proceeding,
determines that a conflict of interest exists and that
the employee is entitled to be represented by private
counsel of his choice. The attorney general shall
notify the employee in writing of such determination
that the employee is entitled to be represented by
private counsel. The attorney general may require, as a
condition to payment of the fees and expenses of such
representation, that appropriate groups of such
employees be represented by the same counsel. If the
employee or group of employees is entitled to
representation by private counsel under the provisions
of this section, the attorney general shall so certify
to the comptroller. Reasonable attorneys' fees and
litigation expenses shall be paid by the state to such
private counsel from time to time during the pendency
of the civil action or proceeding subject to
certification that the employee is entitled to
representation under the terms and conditions of this
section by the head of the department, commission,
division, office or agency in which such employee is
employed and upon the audit and warrant of the
comptroller. Any dispute with respect to representation
of multiple employees by a single counsel or the amount
of litigation expenses or the reasonableness of
attorneys' fees shall be resolved by the court upon
motion or by way of a special proceeding.
(c) Where the employee delivers process and a request for a
defense to the attorney general as required by
subdivision four of this section, the attorney general
shall take the necessary steps including the retention
of private counsel under the terms and conditions
provided in paragraph (b) of subdivision two of this
section on behalf of the employee to avoid entry of a
default judgment pending resolution of any question
pertaining to the obligation to provide for a defense.
3. (a) The state shall indemnify and save harmless its
employees in the amount of any judgment obtained
against such employees in any state or federal court,
or in the amount of any settlement of a claim, or shall
pay such judgment or settlement; provided, that the act
or omission from which such judgment or settlement
arose occurred while the employee was acting within the
scope of his public employment or duties; the duty to
indemnify and save harmless or pay prescribed by this
subdivision shall not arise where the injury or damage
resulted from intentional wrongdoing on the part of the
employee.
(b) An employee represented by the attorney general or by
private counsel pursuant to this section shall cause to
be submitted to the head of the department, commission,
division, office or agency in which he is employed any
proposed settlement which may be subject to
indemnification or payment by the state and if not
inconsistent with the provisions of this section such
head of the department, commission, division, office or
agency in which he is employed shall certify such
settlement, and submit such settlement and
certification to the attorney general. The attorney
general shall review such proposed settlement as to
form and amount, and shall give his approval if in his
judgment the settlement is in the best interest of the
state. Nothing in this subdivision shall be construed
to authorize the state to indemnify and save harmless
or pay an employee with respect to a settlement not so
reviewed and approved by the attorney general.
(c) Nothing in this subdivision shall authorize the state
to indemnify or save harmless an employee with respect
to fines or penalties, or money recovered from an
employee pursuant to article seven-a of the state
finance law; provided, however, that the state shall
indemnify and save harmless its employees in the amount
of any costs, attorneys' fees, damages, fines or
penalties which may be imposed by reason of an
adjudication that an employee, acting within the scope
of his public employment or duties, has, without
willfulness or intent on his part, violated a prior
order, judgment, consent decree or stipulation of
settlement entered in any court of this state or of the
United States. The attorney general shall promulgate
such rules and regulations as are necessary to
effectuate the purposes of this subdivision.
(d) Upon entry of a final judgment against the employee, or
upon the settlement of the claim, the employee shall
cause to be served a copy of such judgment or
settlement, personally or by certified or registered
mail within thirty days of the date of entry or
settlement, upon the head of the department,
commission, division, office or agency in which he is
employed; and if not inconsistent with the provisions
of this section, such judgment or settlement shall be
certified for payment by such head of the department,
commission, division, office or agency. If the attorney
general concurs in such certification, the judgment or
settlement shall be paid upon the audit and warrant of
the comptroller. On or before January fifteenth the
comptroller, in consultation with the department of law
and other agencies as may be appropriate, shall submit
to the governor and the legislature an annual
accounting of judgments, settlements, fees, and
litigation expenses paid pursuant to this section
during the preceding and current fiscal years. Such
accounting shall include, but not be limited to the
number, type and amount of claims so paid, as well as
an estimate of claims to be paid during the remainder
of the current fiscal year and during the following
fiscal year.
4. The duty to defend or indemnify and save harmless prescribed
by this section shall be conditioned upon (i) delivery to
the attorney general or an assistant attorney general at an
office of the department of law in the state by the employee
of the original or a copy of any summons, complaint,
process, notice, demand or pleading within five days after
he is served with such document, and (ii) the full
cooperation of the employee in the defense of such action or
proceeding and in defense of any action or proceeding
against the state based upon the same act or omission, and
in the prosecution of any appeal. Such delivery shall be
deemed a request by the employee that the state provide for
his defense pursuant to this section.
5. The benefits of this section shall inure only to employees
as defined herein and shall not enlarge or diminish the
rights of any other party nor shall any provision of this
section be construed to affect, alter or repeal any
provision of the workers' compensation law.
6. This section shall not in any way affect the obligation of
any claimant to give notice to the state under section ten
of the court of claims act or any other provision of law.
7. The provisions of this section shall not be construed to
impair, alter, limit or modify the rights and obligations of
any insurer under any policy of insurance.
8. The provisions of this section shall apply to all actions
and proceedings pending upon the effective date thereof or
thereafter instituted.
9. Except as otherwise specifically provided in this section,
the provisions of this section shall not be construed in any
way to impair, alter, limit, modify, abrogate or restrict
any immunity available to or conferred upon any unit,
entity, officer or employee of the state or any other level
of government, or any right to defense and/or
indemnification provided for any governmental officer or
employee by, in accordance with, or by reason of, any other
provision of state or federal statutory or common law.
10. If any provision of this section or the application thereof
to any person or circumstance be held unconstitutional or
invalid in whole or in part by any court of competent
jurisdiction, such holding of unconstitutionality or
invalidity shall in no way affect or impair any other
provision of this section or the application of any such
provision to any other person or circumstance.
11. The provisions of this section shall not apply to physicians
who are subject to the provisions of the plan for the
management of clinical practice income as set forth in the
policies of the board of trustees, title 8, New York codes
rules and regulations, regarding any civil action or
proceeding alleging some professional malpractice in any
state or federal court arising out of the physician's
involvement in clinical practice as defined in that plan.
Sec. 18. Defense and indemnification of officers and employees
of public entities.
1. As used in this section, unless the context otherwise
requires:
(a) The term "public entity" shall mean (i) a county, city,
town, village or any other political subdivision or
civil division of the state, (ii) a school district,
board of cooperative educational services, or any other
governmental entity or combination or association of
governmental entities operating a public school,
college, community college or university, (iii) a
public improvement or special district, (iv) a public
authority, commission, agency or public benefit
corporation, or (v) any other separate corporate
instrumentality or unit of government; but shall not
include the state of New York or any other public
entity the officers and employees of which are covered
by section seventeen of this chapter or by defense and
indemnification provisions of any other state statute
taking effect after January first, nineteen hundred
seventy-nine.
(b) The term "employee" shall mean any commissioner, member
of a public board or commission, trustee, director,
officer, employee, volunteer expressly authorized to
participate in a publicly sponsored volunteer program,
or any other person holding a position by election,
appointment or employment in the service of a public
entity, whether or not compensated, but shall not
include the sheriff of any county or an independent
contractor. The term "employee" shall include a former
employee, his estate or judicially appointed personal
representative.
(c) The term "governing body" shall mean the board or body
in which the general legislative, governmental or
public powers of the public entity are vested and by
authority of which the business of the public entity is
conducted.
2. The provisions of this section shall apply to any public
entity:
(a) whose governing body has agreed by the adoption of
local law, by-law, resolution, rule or regulation (i)
to confer the benefits of this section upon its
employees, and (ii) to be held liable for the costs
incurred under these provisions; or
(b) where the governing body of a municipality, for whose
benefit the public entity has been established, has
agreed by the adoption of local law or resolution (i)
to confer the benefits of this section upon the
employees of such public entity, and (ii) to be held
liable for the costs incurred under these provisions.
3. (a) Upon compliance by the employee with the
provisions of subdivision five of this section, the
public entity shall provide for the defense of the
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 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 at the behest of the public entity employing such
employee.
(b) Subject to the conditions set forth in paragraph (a) of
this subdivision, the employee shall be entitled to be
represented by private counsel of his choice in any
civil action or proceeding whenever the chief legal
officer of the public entity or other counsel
designated by the public entity determines that a
conflict of interest exists, or whenever a court, upon
appropriate motion or otherwise by a special
proceeding, determines that a conflict of interest
exists and that the employee is entitled to be
represented by counsel of his choice, provided,
however, that the chief legal officer or other counsel
designated by the public entity may require, as a
condition to payment of the fees and expenses of such
representation, that appropriate groups of such
employees be represented by the same counsel.
Reasonable attorneys' fees and litigation expenses
shall be paid by the public entity to such private
counsel from time to time during the pendency of the
civil action or proceeding with the approval of the
governing body of the public entity.
(c) Any dispute with respect to representation of multiple
employees by a single counsel or the amount of
litigation expenses or the reasonableness of attorneys'
fees shall be resolved by the court upon motion or by
way of a special proceeding.
(d) Where the employee delivers process and a written
request for a defense to the public entity under
subdivision five of this section, the public entity
shall take the necessary steps on behalf of the
employee to avoid entry of a default judgment pending
resolution of any question pertaining to the obligation
to provide for a defense.
4. (a) The public entity shall indemnify and save
harmless its employees in the amount of any judgment
obtained against such employees in a state or federal
court, or in the amount of any settlement of a claim,
provided that the act or omission from which such
judgment or claim arose occurred while the employee was
acting within the scope of his public employment or
duties; provided further that in the case of a
settlement the duty to indemnify and save harmless
shall be conditioned upon the approval of the amount of
settlement by the governing body of the public entity.
(b) Except as otherwise provided by law, the duty to
indemnify and save harmless prescribed by this
subdivision shall not arise where the injury or damage
resulted from intentional wrongdoing or recklessness on
the part of the employee.
(c) Nothing in this subdivision shall authorize a public
entity to indemnify or save harmless an employee with
respect to punitive or exemplary damages, fines or
penalties, or money recovered from an employee pursuant
to section fifty-one of the general municipal law;
provided, however, that the public entity shall
indemnify and save harmless its employees in the amount
of any costs, attorneys' fees, damages, fines or
penalties which may be imposed by reason of an
adjudication that an employee, acting within the scope
of his public employment or duties, has, without
willfulness or intent on his part, violated a prior
order, judgment, consent decree or stipulation of
settlement entered in any court of this state or of the
United States.
(d) Upon entry of a final judgment against the employee, or
upon the settlement of the claim, the employee shall
serve a copy of such judgment or settlement, personally
or by certified or registered mail within thirty days
of the date of entry or settlement, upon the chief
administrative officer of the public entity; and if not
inconsistent with the provisions of this section, the
amount of such judgment or settlement shall be paid by
the public entity.
5. The duty to defend or indemnify and save harmless prescribed
by this section shall be conditioned upon: (i) delivery by
the employee to the chief legal officer of the public entity
or to its chief administrative officer of a written request
to provide for his defense together with the original or a
copy of any summons, complaint, process, notice, demand or
pleading within ten days after he is served with such
document, and (ii) the full cooperation of the employee in
the defense of such action or proceeding and in defense of
any action or proceeding against the public entity based
upon the same act or omission, and in the prosecution of any
appeal.
6. The benefits of this section shall inure only to employees
as defined herein and shall not enlarge or diminish the
rights of any other party nor shall any provision of this
section be construed to affect, alter or repeal any
provision of the workers' compensation law.
7. This section shall not in any way affect the obligation of
any claimant to give notice to the public entity under
section ten of the court of claims act, section fifty-e of
the general municipal law, or any other provision of law.
8. Any public entity is hereby authorized and empowered to
purchase insurance from any insurance company created by or
under the laws of this state, or authorized by law to
transact business in this state, against any liability
imposed by the provisions of this section, or to act as a
self-insurer with respect thereto.
9. All payments made under the terms of this section, whether
for insurance or otherwise, shall be deemed to be for a
public purpose and shall be audited and paid in the same
manner as other public charges.
10. The provisions of this section shall not be construed to
impair, alter, limit or modify the rights and obligations of
any insurer under any policy of insurance.
11. Except as otherwise specifically provided in this section,
the provisions of this section shall not be construed in any
way to impair, alter, limit, modify, abrogate or restrict
any immunity to liability available to or conferred upon any
unit, entity, officer or employee of any public entity by,
in accordance with, or by reason of, any other provision of
state or federal statutory or common law.
12. Except as otherwise provided in this section, benefits
accorded to employees under this section shall be in lieu of
and take the place of defense or indemnification protections
accorded the same employees by another enactment; unless the
governing body of the public entity shall have provided that
these benefits shall supplement, and be available in
addition to, defense or indemnification protection conferred
by another enactment.
13. The provisions of this section shall also be applicable to
any public library supported in whole or in part by a public
entity whose governing body has determined by adoption of a
local law, ordinance, by-law, resolution, rule or regulation
to confer the benefits of this section upon the employees of
such public library and to be held liable for the costs
incurred under these provisions.
14. If any provision of this section or the application thereof
to any person or circumstance be held unconstitutional or
invalid in whole or in part by any court, such holding of
unconstitutionality or invalidity shall in no way affect or
impair any other provision of this section or the
application of any such provision to any other person or
circumstance.
Sec. 19. Reimbursement of defense costs incurred by or on behalf
of state employees.
1. (a) As used in this section, unless the context
otherwise requires, the term "employee" shall mean 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 term
employee shall include a former employee, his estate or
judicially appointed personal representative and
persons who assist the education department or the
department of health as consultants or expert witnesses
in the investigation or prosecution of alleged
professional misconduct, licensure matters, restoration
proceedings or criminal prosecutions for unauthorized
practice pursuant to title eight of the education law
or title II-A of article two of the public health law.
(b) For the purposes of this section, the term "employee"
shall include members, officers and other persons in
the employment of the New York state energy research
and development authority.
(c) For the purposes of this section, the term "employee"
shall include members of the state patient
qualification review board appointed by the
commissioner of health pursuant to article thirty-three-
A of the public health law.
(d) For the purposes of this section, the term "employee"
shall include directors, officers and employees of the
facilities development corporation.
(e) For the purposes of this section, the term "employee"
shall include directors, officers and employees of the
environmental facilities corporation for corporate
projects involving (i) hazardous waste, (ii) industrial
solid waste activities as defined in section twelve
hundred eighty-five-g of the public authorities law,
and (iii) all other activities not covered by
professional liability insurance.
2. (a) Upon compliance by the employee with the
provisions of subdivision three of this section, and
subject to the conditions set forth in paragraph (b) of
this subdivision, it shall be the duty of the state to
pay reasonable attorneys' fees and litigation expenses
incurred by or on behalf of an employee in his or her
defense of a criminal proceeding in a state or federal
court arising out of any act which occurred while such
employee was acting within the scope of his public
employment or duties upon his acquittal or upon the
dismissal of the criminal charges against him or
reasonable attorneys' fees incurred in connection with
an appearance before a grand jury which returns no true
bill against the employee where such appearance was
required as a result of any act which occurred while
such employee was acting within the scope of his public
employment or duties unless such appearance occurs in
the normal course of the public employment or duties of
such employee.
(b) Upon the application for reimbursement for reasonable
attorneys' fees or litigation expenses or both made by
or on behalf of an employee as provided in subdivision
three of this section, the attorney general shall
determine, based upon his investigation and his review
of the facts and circumstances, whether such
reimbursement shall be paid. The attorney general shall
notify the employee in writing of such determination.
Upon determining that such reimbursement should be
provided, the attorney general shall so certify to the
comptroller. Upon such certification, reimbursement
shall be made for such fees or expenses or both upon
the audit and warrant of the comptroller. On or before
January fifteenth the comptroller, in consultation with
the department of law and other agencies as may be
appropriate, shall submit to the governor and the
legislature an annual accounting of judgments,
settlements, fees, and litigation expenses paid
pursuant to this section during the preceding and
current fiscal years. Such accounting shall include,
but not be limited to the number, type and amount of
claims so paid, as well as an estimate of claims to be
paid during the remainder of the current fiscal year
and during the following fiscal year. Any dispute with
regard to entitlement to reimbursement or the amount of
litigation expenses or the reasonableness of attorneys'
fees shall be resolved by a court of competent
jurisdiction upon appropriate motion or by way of a
special proceeding.
3. Reimbursement of reasonable attorneys' fees or litigation
expenses or both by the state as prescribed by this section
shall be conditioned upon (a) delivery to the attorney
general or an assistant attorney general at an office of the
department of law in the state by the employee of a written
request for reimbursement of expenses together with, in the
case of a criminal proceeding, the original or a copy of an
accusatory instrument within ten days after he is arraigned
upon such instrument or, in the case of a grand jury
appearance, written documentation of evidence of such
appearance and (b) the full cooperation of the employee in
defense of any action or proceeding against the state based
upon the same act, and in the prosecution of any appeal.
4. Except as otherwise specifically provided in this section,
the provisions of this section shall not be construed in any
way to impair, alter, limit, modify, abrogate or restrict
any immunity available to or conferred upon any unit,
entity, officer or employee of the state or any other level
of government, or any right to defense and/or
indemnification provided for any governmental officer or
employee by, in accordance with, or by reason of, any other
provisions of state or federal statutory or common law.
5. If any provision of this section or the application thereof
to any person or circumstance be held unconstitutional or
invalid in whole or in part by any court of competent
jurisdiction, such holding of unconstitutionality or
invalidity shall in no way affect or impair any other
provision of this section or the application of any such
provision to any other person or circumstances.
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