Can a town attorney represent a town judge in a grievance proceeding before the New York State Commission on Judicial Conduct?

Subject

Section 18 of Public Officers Law does not authorize representation before Commission on Judicial Conduct; Defense and indemnification of a town judge in a grievance proceeding before the Commission on Judicial Conduct.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_96-36_pw.pdf

Plain-English summary

The Stony Point town attorney asked whether he could represent a town justice who had a grievance pending before the State Commission on Judicial Conduct. Stony Point provides defense and indemnification to its officers and employees solely under Public Officers Law § 18, the local-option statute that many municipalities adopt by resolution or local law.

The AG concluded that § 18 does not reach this kind of proceeding. The statute's duty to defend (§ 18(3)(a)) covers "any civil action or proceeding, state or federal." Reading that phrase against § 18(4)(a), which limits the duty to indemnify to judgments or settlements "in a state or federal court," the AG held that the duty to defend likewise applies only to court proceedings. A Commission on Judicial Conduct grievance is an administrative disciplinary proceeding, not a State or Federal court action, so it falls outside the statute. The AG also pointed to § 18's legislative history: the Law Revision Commission modeled § 18 on Public Officers Law § 17, which defends State officers and employees, and that statute's defense duty is limited the same way.

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

What is Public Officers Law § 18?
Section 18 is a "local option" defense and indemnification statute. A county, city, town, village, or other local government can adopt it by resolution or local law, after which the local government must defend its employees in covered civil actions and pay any resulting judgment or settlement, so long as the act in question was within the scope of employment.

Why did the town think § 18 might apply?
The town judge faced a grievance complaint. The town attorney's instinct was that the judge was being challenged for conduct in the course of his official duties, and that defense and indemnification ought to follow whenever an employee gets sued for doing the job.

Why didn't § 18 reach a judicial-conduct grievance?
Because the statute's text limits the defense duty to civil actions or proceedings in a state or federal court, and the indemnification duty to judgments or settlements in state or federal court. The Commission on Judicial Conduct is a state disciplinary body that conducts its own administrative process; cases before it are not "in" any court within the meaning of § 18.

What if Stony Point also had a local defense law?
The AG noted that under § 18(12) a local government can preserve or supplement a separately enacted local defense law alongside § 18. Stony Point had elected to rely on § 18 alone, so there was no other authority to fall back on. A municipality that wants broader coverage has to enact it locally and preserve it explicitly.

Does this mean the judge had to pay his own lawyer?
The opinion did not say so directly, but yes, at least insofar as the town was concerned. The judge was free to retain private counsel or seek any coverage available from other sources, such as judicial defense funds or insurance, but the town had no authority under § 18 to assign the town attorney or fund private counsel for the grievance.

Background and statutory framework

Public Officers Law § 17 created the State's defense and indemnification scheme for State officers and employees in 1981. Section 18, enacted the same year, mirrored that scheme at the local level but was made optional: a local government must adopt § 18 by resolution or local law before its protections take effect. Once adopted, § 18 supersedes any pre-existing local defense and indemnification scheme unless the local body specifically preserves the local provision.

Both statutes define the defense duty by reference to "civil action or proceeding, state or federal." The Law Revision Commission, which drafted § 18 on the model of § 17, did not extend the defense duty to administrative or disciplinary proceedings outside the courts. The Commission on Judicial Conduct, created by N.Y. Const. art. VI, § 22, conducts its own investigations and formal proceedings before deciding to admonish, censure, remove, or retire a judge; appellate review goes to the Court of Appeals on a formal record, but the underlying disciplinary case is an administrative one. That structural difference, in the AG's view, kept the case outside the statute.

Citations

• Public Officers Law § 18 (defense and indemnification of employees of local governments; local option)
• Public Officers Law § 17 (defense and indemnification of State employees)
• Coker v City of Schenectady, 200 AD2d 250 (3d Dept 1994), app dismissed, 84 NY2d 1027 (1995)
• Corning v Village of Laurel Hollow, 64 AD2d 918 (2d Dept 1978), affd, 48 NY2d 348 (1979)

Original opinion text

Opn. No. 96-36
PUBLIC OFFICERS LAW § 18.
Section 18 of the Public Officers Law does not provide authority for representation of a town judge by
the town attorney in a grievance proceeding before the Commission on Judicial Conduct.
September 30, 1996
Frank J. Phillips, Esq. Informal Opinion
Town Attorney No. 96-36
Town of Stony Point
50 Route 9W, Monte Plaza
Stony Point, NY 10980
Dear Mr. Phillips:
You have asked whether a town attorney may provide legal representation to a town judge in a
grievance brought before the Commission on Judicial Conduct.
You have informed us that your town provides defense and indemnification to town officials under the
provisions of section 18 of the Public Officers Law. Section 18 provides a scheme for defense and
indemnification of public employees upon an affirmative decision by a local government to utilize its
provisions. Public Officers Law § 18(2). Once section 18 is selected through local option, it takes the
place of defense and indemnification provided to the local government's employees by another
legislative enactment unless the local government's governing body provides that the benefits of section
18 will supplement, rather than replace other defense and indemnification provisions. Id., § 18(12). If
other provisions are not specifically preserved or applied, however, section 18 will fully replace them.
Coker v City of Schenectady, 200 AD2d 250 (3d Dept 1994), app dismissed, 84 NY2d 1027 (1995).
Thus, a local government that has enacted a local law (see, Corning v Village of Laurel Hollow, 64
AD2d 918 [2d Dept 1978], affd, 48 NY2d 348 [1979]) providing for defense and indemnification of its
officers and employees may instead elect to apply the provisions of section 18 solely, continue to
provide for defense and indemnification under the local law, or supplement the local law with the
provisions of section 18. You have informed us that your town provides defense and indemnification to
its officers and employees solely under section 18 of the Public Officers Law. We need not look beyond
section 18, then, for authority to provide the representation.

Under section 18, upon compliance by the employee with the requirements of the provision, the local
government provides 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.

Public Officers Law § 18(3)(a). The local government must

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.

Id., § 18(4)(a).

It seems clear under these provisions that the duty to defend and indemnify local employees only applies
to civil actions or proceedings in a State or Federal court. While the duty to defend under section 18(3)
(a) applies to any civil action or proceeding, State or Federal, we believe that the defense duty applies to
those actions or proceedings only in State or Federal court. In our view, the duty to defend is not broader
than the duty to indemnify which specifically is limited to actions or proceedings in State or Federal
court. Section 18 was a proposal of the New York Law Revision Commission, which modeled its
proposal on section 17 of the Public Officers Law, providing defense and indemnification to State
officers and employees. Under section 17, the duty to defend applies to civil actions or proceedings in
any State or Federal court. Thus, the legislative history indicates that the duty to defend under section 18
was not intended to be broader than the State's obligation under section 17. The defense of a judge,
therefore, in a grievance proceeding brought before the Commission on Judicial Conduct is outside the
provisions of section 18.
We conclude that section 18 of the Public Officers Law does not provide authority for representation of
a town judge by the town attorney in a grievance proceeding before the Commission on Judicial
Conduct.
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

1 New York Law Revision Commission, Memorandum Relating to Indemnification and Defense of
Public Officers and Employees, 204th Assembly, Reg. Sess. (1981), reprinted in 1981 NY Laws
2314, 2315.