Can a New York town or village provide legal defense and indemnification for officers of a joint fire district under Public Officers Law section 18?

Plain-English summary

The Town of Ellicottville asked whether it could pay the legal defense and indemnification costs of commissioners of a joint fire district formed by the Town and the Village of Ellicottville. The AG's office answered that the joint fire district itself was the right payer, not the constituent town or village.

Public Officers Law § 18 lets a "public entity" elect to defend and indemnify its officers, and a joint fire district qualified as a public entity. POL § 18(2)(b) lets a municipality assume that obligation for entities formed for the municipality's benefit, the way the office had previously held could be done for industrial development agencies (90-41) and soil and water conservation districts (96-F6). A joint fire district was different: it was formed to benefit specific property within the district, not the towns or villages that created it. The cost of defense and indemnification therefore had to be paid by the district as a charge on the property within its boundaries.

Currency note

This opinion was issued in 1996. 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

Q: What is "Public Officers Law section 18"?
A: It is the statute that lets a New York public entity choose to defend and indemnify its officers and employees against civil claims arising from acts or omissions within the scope of their public employment.

Q: Why couldn't the municipalities just step in?
A: POL § 18(2)(b) allowed a municipality to do so only for a public entity formed for the municipality's benefit. The opinion concluded a joint fire district was formed to benefit the property and property owners within the district itself, not the constituent town or village, so the municipal-funding hook in § 18(2)(b) did not reach it.

Q: Did the joint fire district have to use POL § 18?
A: No. The commissioners had to formally elect to confer the section's benefits on the district's officers and employees and accept responsibility for the costs. The district could also self-insure or purchase insurance from a New York-authorized insurer under § 18(8).

Q: Who paid the cost when the district chose to defend and indemnify?
A: The expense became a district charge against property within the district's boundaries, paid by the same property owners who received the district's fire-protection services.

Q: How did the AG distinguish industrial development agencies and soil and water conservation districts?
A: State law expressly says IDAs are established "for the benefit of … the municipality" (General Municipal Law § 856(1)(a)) and that conservation districts address county-wide public concerns (Soil and Water Conservation Districts Law § 5). No equivalent municipal-benefit language appears in the joint fire district statutes (Town Law §§ 189-a(2)(d), 171).

Background and statutory framework

A joint fire district is created by joint action of one or more towns and one or more villages under Town Law § 189-a and related provisions. It is a "district corporation" under General Construction Law § 66: a territorial division with the power to contract debt and levy taxes or benefit assessments on real estate.

POL § 18(1)(a) defines "public entity" broadly to include counties, cities, towns, villages, and "any other political subdivision or civil division of the state … or … any other separate corporate instrumentality or unit of government." The joint fire district fit within that definition. The breadth of the public-entity definition was therefore not the limiting factor. What controlled was POL § 18(2)(b)'s "for whose benefit" language, which the AG read narrowly: a town or village could only step in for a public entity that benefited the town or village, not for one that benefited specific property within the district.

Citations and references

Statutes:

• N.Y. Public Officers Law § 18 (defense and indemnification of public-entity officers)
• N.Y. General Construction Law § 66 (district corporation defined)
• N.Y. General Municipal Law § 856 (industrial development agencies)
• N.Y. Town Law § 189-a (joint fire districts)
• N.Y. Soil and Water Conservation Districts Law § 5

Prior AG opinions:

• Op Atty Gen No. 96-F6 (municipality may indemnify soil and water conservation district officers)
• Op Atty Gen (Inf) No. 90-41 (municipality may indemnify industrial development agency officers)

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_96-32_pw.pdf

Original opinion text

GENERAL CONSTRUCTION LAW § 66; GENERAL MUNICIPAL LAW § 856(1)(a);
PUBLIC OFFICERS LAW § 18; SOIL AND WATER CONSERVATION DISTRICTS
LAW § 5; TOWN LAW §§ 171, 176(18) and (27), 189-a(2)(d).
A joint fire district is a public entity which can provide
for the defense and indemnification of its officers and employees
in accordance with section 18 of the Public Officers Law. Since
a joint fire district is formed for the benefit of property
included within the district and not the municipalities, there is
no authority under section 18 for provision of defense and
indemnification by the municipalities.
September 19, 1996
Thomas C. Brady, Esq.
Town Attorney
Town of Ellicottville
P. O. Box 227
Salamanca, NY 14779-0227

Informal Opinion
No. 96-32

Dear Mr. Brady:
You have asked whether the Town of Ellicottville may provide
defense and indemnification to commissioners of a joint fire
district formed by the Town and the Village of Ellicottville.
You have referred to Op Atty Gen No. 96-F6 (see also, Op Atty Gen
[Inf] No. 90-41), where we applied provisions of section 18 of
the Public Officers Law authorizing the governing body of a
municipality for whose benefit a public entity has been
established, to provide at municipal expense for the defense and
indemnification of officers and employees of the public entity.
See, Public Officers Law § 18(2)(b). As indicated in our 1990
opinion, this provision authorizes a municipality to agree to
defend and indemnify a public entity formed for its benefit. We
do not believe, however, that a joint fire district falls within
these particular provisions of section 18. It is distinguishable
from the public entities examined in the above two opinions.
We note that a joint fire district falls within the
definition of "public entity" used in section 18 of the Public
Officers Law. A joint fire district is a "district corporation",
defined as
any territorial division of the state, other
than a municipal corporation, heretofore or
hereafter established by law which possesses
the power to contract indebtedness and levy
taxes or benefit assessments upon real estate

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or to require the levy of such taxes or
assessments, whether or not such territorial
division is expressly declared to be a body
corporate and politic by the statute creating
or authorizing the creation of such
territorial division. General Construction
Law § 66; see, Town Law §§ 189-a(2)(d),
176(18), (27).
Under section 18 the term "public entity" is defined broadly to
mean a county, city, town, village "or any other political
subdivision or civil division of the state . . . or . . . any
other separate corporate instrumentality or unit of government".
Public Officers Law § 18(1)(a). We believe a fire district or
joint fire district falls within this definition.
A joint fire district, however, is formed to benefit certain
property included in the town(s) and village(s) that are included
within the boundaries of the district. Town Law §§ 189-a(2)(d),

171. Thus, a joint fire district is not a public entity that has
     been established for the benefit of the municipalities. It has
     been established to benefit particular property and property
     owners included within the joint district. It follows that the
     municipalities may not confer the benefits of section 18 at
     municipal expense upon the officers and employees of the joint
     fire district. A joint fire district is distinguishable from an
     industrial development agency and a soil and water conservation
     district, examined in Op Atty Gen (Inf) No. 90-41 and Op Atty Gen
     No. 96-F6. State law specifically provides that those public
     entities are formed for the benefit of the municipality.
     Industrial development agencies are established for the benefit
     of "the governing body of the municipality". General Municipal
     Law § 856(1)(a). Soil and water conservation districts are
     created upon a finding by the county's legislative body that
     conservation of soil and water resources, control and prevention
     of soil erosion and prevention of flood water and sediment
     damages are problems of public concern in the county. Soil and
     Water Conservation Districts Law § 5.
     Under section 18, however, a joint fire district as a public
     entity, can itself provide for defense and indemnification of its
     officers and employees. The provisions of section 18 apply to
     any public entity whose governing body elects to confer the
     section's benefits upon its officers and employees and to be held
     responsible for the costs incurred. Public Officers Law
     § 18(2)(a). The commissioners of a joint fire district may apply
     section 18 to the district.

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Upon compliance by officers and employees of the joint fire
district with the procedural requirements of section 18, the
district would be responsible for their defense in any civil
action or proceeding, State or Federal, arising out of an alleged
act or omission which occurred or allegedly occurred while they
were acting within the scope of their public employment or
duties. Id., § 18(3)(a). The joint fire district also would
have responsibility for indemnifying and saving harmless its
officers and employees in the amount of any judgment, in any
State or Federal court, or in the amount of any settled claim,
provided that the act or omission from which the judgment or
settlement arose occurred while they were acting within the scope
of their public employment or duties. Id., § 18(4)(a).
Settlements must be approved by the commissioners of the joint
fire district. Id.
The expense of defense and indemnification would be a
district charge against property included within the district
and, therefore, would be paid by persons receiving the benefits
of the district.
The joint fire district is authorized to
purchase insurance from any insurance company created by or under
the laws of the State or authorized to do business in this State
against any liability imposed by section 18 or it may act as a
self-insurer. Id., § 18(8).
We conclude that a joint fire district is a public entity
which can provide for the defense and indemnification of its
officers and employees in accordance with section 18 of the
Public Officers Law. In that a joint fire district is formed for
the benefit of property included within the district and not to
benefit the municipalities, there is no authority under
section 18 for provision of defense and indemnification by the
municipalities.

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The Attorney General renders formal opinions only to
officers and departments of State government. This perforce is
an informal and unofficial expression of the views of this
office.
Very truly yours,

JAMES D. COLE
Assistant Attorney General
in Charge of Opinions