Can a New York Soil and Water Conservation District legally cover its own board members and employees against lawsuits, or does that have to come from somewhere else?

Plain-English summary

A Soil and Water Conservation District is an oddly shaped creature. The county creates it by resolution, but the district has its own board, hires its own staff, sues and is sued in its own name, and is treated as a political subdivision separate from both the county and the state. That separateness used to leave its directors and employees exposed. Back in 1980 the AG had said there was no authority for a Soil and Water Conservation District to indemnify its own people, because no statute gave them that protection.

The Legislature changed the picture by adding Public Officers Law § 18, a general scheme that lets a "public entity" decide to confer defense-and-indemnification benefits on its officers and employees, with the entity then on the hook for the costs. Soil and Water Conservation Districts are political subdivisions and therefore qualify as public entities under § 18.

The 1996 opinion answered the chairman's question with two paths. First, the district's own board can adopt § 18 and pay for defense and indemnification out of the district. Second, the county can agree under § 18(2)(b), as a municipality for whose benefit the district was established, to take on those costs itself. The opinion also confirms that members of cross-district arbitration committees formed under § 10 of the Soil and Water Conservation Districts Law continue to receive whatever protection their home district provides.

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 was the difference between Public Officers Law § 17 and § 18?

Section 17 covers state officers and employees. Section 18 was added later to give local governments and other public entities a similar framework they could opt into. The substantive protections, defense by the entity in civil actions arising from in-scope acts and payment of judgments or approved settlements, look alike. The trigger differs: § 17 applies to state employees automatically, while § 18 applies only when a governing body elects to confer the benefits.

Why does the district need to "opt in"?

Section 18 is permissive, not mandatory. The governing body of the public entity has to elect coverage and agree to be liable for costs. Until the district does that, neither it nor anyone it works with picks up the bill. Once the board adopts § 18, defense and indemnification flow to directors, officers, and employees for acts within the scope of their duties.

Can the county really take on the costs of a separate political subdivision?

Yes, under the specific provision in § 18(2)(b). That subsection lets a municipality confer § 18 benefits on a public entity "for whose benefit" it was established, with the municipality agreeing to be liable for costs. A Soil and Water Conservation District is established by the county legislature on findings about local soil-erosion and flood-control problems and a determination that a substantial portion of rural land occupiers favor creation of the district. The AG concluded that makes the district one established for the county's benefit.

What happens to a director who joins an inter-district arbitration committee?

Section 10 of the Soil and Water Conservation Districts Law lets two or more districts cooperate to exercise any conferred power. The AG concluded that a director who sits on a cross-district arbitration committee is still exercising a power granted to the home district's board, so whatever indemnification scheme the home district adopts continues to cover the director's committee work.

Can the district insure rather than self-fund?

Yes. Section 18(8) lets the district buy insurance from any insurer created under or licensed in New York for liabilities imposed by § 18, or act as a self-insurer.

Background and statutory framework

Soil and Water Conservation Districts trace to legislation declaring that the conservation of soil and water resources, the prevention of soil erosion, and the prevention of flood-water and sediment damage are problems of public concern. Under § 5(1) of the Soil and Water Conservation Districts Law, a county legislative body creates a district by resolution after finding those problems present and determining that a substantial portion of the county's rural land occupiers favor the district.

The district is run by a board of directors empowered to delegate duties, hire staff, set compensation, run petty cash and revolving funds, and arrange for use of county machinery and highway easements. The district can sue and be sued in its own name, and state agencies may cooperate with it on programs under the statute.

Section 17 of the Public Officers Law covered only state officers and employees when the 1980 opinion was issued, which left soil and water districts in the cold. The Legislature later added § 18, defining "public entity" to include any political subdivision or civil division of the state and creating an opt-in defense-and-indemnification regime, including for cases brought in federal court. Section 18(2)(a) lets the district's own governing body elect coverage; § 18(2)(b) lets a municipality for whose benefit the entity exists confer the benefits at municipal expense. Section 18(8) authorizes either insurance or self-insurance.

Citations

• Public Officers Law §§ 17, 18, providing defense and indemnification for state employees and public entity officers and employees, respectively.
• Soil and Water Conservation Districts Law §§ 3(1), 5(1), 8, 9, 10, 11, addressing district formation, board powers, cooperation among districts, and cooperation with state agencies.
• 1980 Op Atty Gen (Inf) 62, the AG's earlier conclusion that no defense and indemnification scheme then covered Soil and Water Conservation Districts.
• Op Atty Gen (Inf) No. 90-41, prior AG opinion on which entities a county is authorized to indemnify under § 18(2)(b).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/96-F6_pw.pdf

Original opinion text

PUBLIC OFFICERS LAW §§ 17, 18; SOIL AND WATER CONSERVATION
DISTRICTS LAW §§ 3(1), 5(1), 8, 9, 10, 11.
The board of directors of a Soil and Water Conservation
District may apply the provisions of section 18 of the Public
Officers Law to directors, officers and employees of the district
and thereby provide for their defense and indemnification for any
acts or omissions committed within the scope of their duties.
Alternatively, the county, for whose benefit a Soil and Water
Conservation District is formed, may provide for the defense and
indemnification of district directors, officers and employees.
April 2, 1996
Hon. Philip Griffen
Chairman
New York State Soil and Water
Conservation Committee
1 Winners Circle
Albany, NY 12235

Formal Opinion
No. 96-F6

Dear Mr. Griffen:
You have asked whether members of Soil and Water
Conservation District Boards of Directors receive indemnification
to protect them from lawsuits arising out of their official
actions.
Soil and Water Conservation Districts are formed by
resolution of a county, which declares the county to be a
district. Soil and Water Conservation Districts Law § 3(1). In
a prior opinion of this office, we concluded that Soil and Water
Conservation Districts are neither State entities nor part of the
county in which they were established. 1980 Op Atty Gen (Inf)

62. We found, based on the provisions of law governing these
    districts, that they are political subdivisions. Id.
    The legal characteristics of these districts, which led to
    this finding, remain. For example, the directors of a district
    are the governing body. Soil and Water Conservation Districts
    Law § 8(1). The directors may delegate powers and duties to the
    chairperson of the Board or to one or more directors and
    designate a secretary and a treasurer. Id. The directors
    independently may authorize officers and employees of the
    district to perform duties that are necessary for the operation
    of the district. Id., § 9(1-a). Directors are empowered to
    establish and abolish positions of employment and fix
    compensation. Id., § 9(1-b). They may authorize the treasurer
    to establish a petty cash fund for specific district purposes or

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undertakings and may establish a revolving fund for specific
administrative and operational accounts. Id., § 9(1-c), (1-d).
The county may permit the use of any street or highway and
machinery or equipment by the district upon such terms as may be
agreed upon but with payment to the county of not less than the
hourly rate fixed by the State Commissioner of Transportation for
the hiring of such machinery and equipment. Id., § 9(12)(a).
The district is responsible for acquisition of adequate insurance
to protect the county in the event of loss or damage to the
equipment and machinery and adequate liability and property
damage insurance upon all equipment and machinery operated by
motors. Id., § 9(12)(d). The State Commissioner of
Transportation may permit the use of State highway machinery and
equipment upon the same terms and conditions. Id., § 9(12)(c).
The directors of the Soil and Water Conservation District
may sue and be sued in the name of the district. Id., § 9(9).
Agencies of the State, under certain circumstances, may cooperate
with the directors in the effectuation of programs under the
provisions of the Soil and Water Conservation Districts Law.
Id., § 11.
Thus, it is apparent that a Soil and Water Conservation
District is a political subdivision, legally independent of the
county and the State.
We pointed out in our prior opinion that in the absence of
specific legislative authority, a governmental unit has neither
the duty nor the authority to hold its officers and employees
harmless against personal liability incurred in the performance
of their duties. 1980 Op Atty Gen (Inf) 62. At the time of our
1980 opinion, State officers and employees received defense and
indemnification for actions in the course of their employment
through the provisions of section 17 of the Public Officers Law
and municipalities were authorized by local law to establish
these benefits. There was no protection, however, as we noted in
our 1980 opinion, for many other entities, including Soil and
Water Conservation Districts. Since that time, however, section
18 was added to the Public Officers Law, providing a scheme
whereby "public entities" can provide for defense and
indemnification of their officers and employees. For purposes of
section 18 "public entity" includes a political subdivision or
civil division of the State. Public Officers Law § 18(1)(a).
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 liable for the costs

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incurred under the section's provisions. Id., § 18(2)(a). The
directors of a Soil and Water Conservation District may apply
section 18 to the district. Upon compliance by directors,
officers or employees of the 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
district also would have responsibility for indemnifying and
saving harmless its directors, 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). Further, any settlements would have to
be approved by the board of directors of the district. Id.
Thus, the board of directors of a Soil and Water Conservation
District may apply the provisions of section 18 and thereby
provide defense and indemnification to its directors, officers
and employees. We note that the 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).
The benefits of section 18 also may be conferred upon
officers and employees of a public entity "where the governing
body of a municipality, for whose benefit the public entity has
been established" has agreed to confer the benefits of section 18
upon that public entity. Id., § 18(2)(b). The municipality
would agree to be held liable for costs incurred under these
provisions. Thus, under section 18(2)(b), a municipality may
agree to defend and indemnify a public entity formed for its
benefit. In our view, a county is authorized under this
provision to provide defense and indemnification in accordance
with section 18 to the directors, officers and employees of a
Soil and Water Conservation District, in that the district is
formed for the benefit of the county within the meaning of the
provision. See, Op Atty Gen (Inf) No. 90-41. A Soil and Water
Conservation District is established by the county legislative
body, which by resolution has declared the county to be a
district. Districts are created upon a finding by the
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. The county legislative body must also determine that a
substantial portion of the rural land occupiers of the county

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favor the creation of the district. Soil and Water Conservation
Districts Law § 5(1). Once established, the district fulfills
the legislative purpose in providing for the conservation of the
soil and water resources of the county.
In our view, Soil and Water Conservation Districts clearly
are public entities established by the county for the benefit of
the county and, therefore, fall within the provisions of section
18(2)(b) of the Public Officers Law. Therefore, a county
legislative body may agree to defend and indemnify the directors,
officers and employees of the district at county expense.
You also have asked whether the members of an arbitration
committee, comprised of representatives from each of three
different district boards of directors, would receive defense and
indemnification relating to committee activities. The
arbitration committee would arbitrate various conflicts. Under
section 10 of the Soil and Water Conservation Districts Law, the
directors of any two or more districts may cooperate with one
another in the exercise of any conferred powers. Thus, the
formation of an arbitration committee representing several
boards, to exercise a power granted to a district board of
directors, is specifically authorized. Since each director, as a
member of the committee, would be performing a power authorized
by law, he would receive the benefits of any defense and
indemnification provisions that are applicable to the board of
directors he represents.
We conclude that the board of directors of a Soil and Water
Conservation District may apply the provisions of section 18 of
the Public Officers Law to directors, officers and employees of
the district and thereby provide for their defense and
indemnification for any acts or omissions committed within the

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scope of their duties. Alternatively, the county, for whose
benefit a Soil and Water Conservation District is formed, may
provide for the defense and indemnification of district
directors, officers and employees.
Very truly yours,

DENNIS C. VACCO
Attorney General