Are unpaid guardians ad litem who serve in the New York City Civil Court Housing Part's program covered by the State's defense and indemnification under Public Officers Law § 17?

Plain-English summary

Public Officers Law § 17 requires the State to defend and indemnify its employees against civil liability for acts within the scope of their public duties. The statute defines "employee" broadly to include not only paid state workers but also "a volunteer expressly authorized to participate in a state-sponsored volunteer program," excluding independent contractors. The Civil Court of the City of New York operates a guardian ad litem program in its Housing Part: a pool of trained volunteers who protect the interests of housing-court litigants whom the court has found incapable of understanding the proceedings against them, often because of mental illness or age.

Volunteer GALs in this program apply to the court, receive six hours of training from Office of Court Administration staff plus further training from Civil Court staff, and are placed on a roster. When a Housing Part judge needs a guardian for a specific litigant, court staff pull two names from the roster and the judge appoints one. Judges can discharge a guardian whose work proves unsatisfactory, and the court can remove a guardian from the roster for incompatible conduct. The GALs in question receive no compensation.

Deputy Chief Administrative Judge Carey asked the AG whether these unpaid GALs were covered by § 17. The AG concluded yes: they are volunteers in a state-sponsored volunteer program.

The opinion applies the AG's prior framework for identifying state-sponsored volunteer programs. The factors include whether the program was established and is administered by a state agency, and whether participants are appointed and directly supervised by state employees. Past AG opinions had applied that framework to volunteer arbitrators and mediators (2004-F3), participants in the Volunteer Lawyers Project of the Housing Court (2000-F1), and bar mediators serving the Appellate Division, First Department (92-F7).

Applying those factors here was straightforward. The GAL program was set up and is operated by the New York City Civil Court, which is part of the Unified Court System. Court staff are state employees under Judiciary Law § 39(6). They train, select, deploy, supervise, and have the power to remove the GALs. The GALs receive a formal letter of selection from court staff. With those features in place, the program is state-sponsored within the meaning of § 17. The AG also noted that because the GALs in question receive no compensation, they are clearly "volunteers" and not employees or independent contractors.

The eligibility for § 17 coverage is conditional. Section 17(4) imposes procedural requirements (timely notice to the Attorney General, cooperation, etc.) that a covered person must meet to receive defense and indemnification. The opinion does not relieve a GAL of those obligations; it simply confirms that, when those conditions are met, defense in civil litigation and indemnification of any resulting judgment or settlement are available, subject to the usual exclusions (notably no indemnification for intentional wrongdoing).

A separate opinion issued later in 2006, 2006-F5, addressed compensated GALs in the same Housing Court program and reached the opposite result, classifying them as independent contractors not covered by § 17. The two opinions read together draw the line: § 17 covers unpaid GALs as volunteers, not compensated GALs.

Currency note

This opinion was issued in 2006. 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

Why does it matter whether a GAL is a "volunteer" versus an "employee" versus an "independent contractor"?
Public Officers Law § 17 covers volunteers in state-sponsored programs and state employees, but expressly excludes independent contractors. Coverage is the difference between the State paying the defense and any judgment and the individual having to do so. For volunteer GALs in the Housing Court program, this opinion is the basis for coverage.

Does this also cover legal malpractice claims against the GAL?
The opinion does not separately address malpractice. Section 17 covers civil actions arising out of acts within the scope of public duties. A claim that a GAL's conduct fell below the standard of care while acting within that role should ordinarily fit, subject to the same procedural requirements and the no-indemnification-for-intentional-wrongdoing exclusion. Practical questions about specific claims should go to the Attorney General's office at the time of the claim.

What exactly counts as a "state-sponsored volunteer program"?
The opinion looks at administration, training, selection, deployment, supervision, and removal authority. When state employees do all those things, the program is state-sponsored. Programs run by private nonprofits even if they support court functions, do not get that label simply because they are aligned with court goals.

Are GALs in non-Housing Court contexts covered too?
This opinion is about the Housing Court program. Other GAL programs would have to be evaluated on their own facts. The Article 81 guardian ad litem context, for example, is structurally different (court-appointed counsel for an allegedly incapacitated person, often compensated under court-set rates).

What if a GAL receives a nominal reimbursement of expenses?
The opinion describes the GAL program as not reimbursing expenses. A different program that reimbursed expenses might still produce a "volunteer" classification, but the AG framework would need to be applied to the specific facts. The compensated-GAL opinion (2006-F5) treated the receipt of $600 per case as decisive, but expense reimbursement is different from compensation.

Background and statutory framework

Public Officers Law § 17 is New York's primary defense-and-indemnification statute for state personnel. Subsection (2) provides defense in civil actions arising out of acts within the scope of public employment or duties. Subsection (3)(a) provides indemnification of judgments and settlements, with the exception that intentional wrongdoing is not indemnified. Subsection (4) imposes procedural prerequisites such as timely notice of action and cooperation in the defense.

Subsection (1)(a) defines "employee" as "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 Unified Court System is a state agency for purposes of § 17. Judiciary Law § 39(6) makes that point explicit. The Civil Court of the City of New York is part of the Unified Court System.

The AG's working definition of a "state-sponsored volunteer program" looks to (a) state-agency establishment and administration of the program; (b) selection and supervision of participants by state employees; (c) ability to remove participants for cause; and (d) participation under formal designation rather than informal arrangement. Each factor was satisfied for the Housing Court GAL program in 2006.

Citations

• Public Officers Law § 17 (the defense-and-indemnification regime); § 17(1)(a) (definition of "employee" including volunteers in state-sponsored programs); § 17(2) (defense); § 17(3)(a) (indemnification); § 17(4) (procedural conditions for coverage).
• Judiciary Law § 39(6) (court staff are state employees).
• Op. Att'y Gen. No. 2004-F3 (volunteer arbitrators and mediators); Op. Att'y Gen. No. 2000-F1 (Volunteer Lawyers Project of the Housing Court); Op. Att'y Gen. No. 92-F7 (bar mediators and pro bono counsel for the Appellate Division, First Department).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/2006-F3_pw.pdf

Original opinion text

Public Officers Law §§ 17, 17(1)(a), 17(2), 17(3)(a), 17(4); Judiciary Law § 39(6)

Unpaid guardians ad litem serving in the New York City Civil Court's guardian ad litem program are eligible for State-provided defense and indemnification.

April 6, 2006

Hon. Joan B. Carey
Deputy Chief Administrative Judge
New York City Courts
Office of Court Administration
25 Beaver Street
New York, NY 10004

Formal Opinion No. 2006-F3

Dear Administrative Judge Carey:

Special Counsel to the Administrative Judge of the Civil Court of New York City has asked whether certain guardians ad litem who serve in the Civil Court's Housing Part's guardian ad litem program are entitled to defense and indemnification under Public Officers Law § 17. As explained below, we are of the opinion that the guardians ad litem are eligible for section 17 coverage as "volunteer[s] expressly authorized to participate in a state-sponsored volunteer program."

The Guardian ad Litem Program

We understand that since 2003, the Civil Court of the City of New York has operated a program within the Housing Part to maintain a pool of guardians ad litem to protect the interests of litigants whom the Court has deemed incapable of understanding the nature and consequences of a proceeding brought against them because of, e.g., mental illness or age.

An individual must apply to the Court to become a guardian ad litem. Applicants receive six hours of training conducted by staff of the Office of Court Administration, and subsequent training by Civil Court staff. Civil Court staff review the applications; the individuals selected to participate in the guardian ad litem program receive a letter so designating them from a member of the Court staff. Upon selection as a participant in the guardian ad litem program, the individual is added to a roster from which potential guardians ad litem are chosen as needed by Housing Part judges. When a judge indicates that a guardian ad litem is to be appointed for a litigant in a specific matter, Court staff provide the judge with two names from the roster; the judge makes the appointment from one of those names. The judge may discharge the guardian in the event that his or her work proves unsatisfactory or detrimental to the interests of his or her ward. Moreover, the Court may remove a guardian from the list of eligible appointees for conduct incompatible with appointment.

The guardians ad litem about whom you are inquiring receive no compensation for their services.

Analysis

Section 17 of the Public Officers Law provides that the State generally must provide for the defense and indemnification of its employees. Defense is provided 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 . . . to have occurred while the employee was acting within the scope of his public employment or duties." Public Officers Law § 17(2). Indemnification is in the amount of any judgment obtained against the employee in any state or federal court, or in the amount of any settlement of claim, if the act underlying the judgment or settlement occurred while the employee was acting within the scope of his public employment or duties and the injury or damage complained of was not the result of intentional wrongdoing by the employee. Id. § 17(3)(a). The provision of defense and indemnification is dependent on the public employee's compliance with certain specified procedural requirements. Id. § 17(4).

Under section 17, "employee" is defined as "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." Public Officers Law § 17(1)(a). We have been asked whether the guardians ad litem are volunteers participating in a state-sponsored volunteer program. We believe that they are.

We have previously evaluated whether particular programs constitute state-sponsored volunteer programs; factors relevant to our past inquiries have included whether the program was established and administered by a state agency, and whether the participants were appointed and directly supervised by state employees. See, e.g., Op. Att'y Gen. No. 2004-F3 (volunteer arbitrators and mediators); Op. Att'y Gen. No. 2000-F1 (participants in the Volunteer Lawyers Project of the Housing Court); Op. Att'y Gen. No. 92-F7 (attorneys serving as bar mediators and pro bono special counsel on behalf of the Supreme Court, Appellate Division, First Department).

Considering these same factors in relation to the subject of your inquiry, we are of the opinion that the guardians ad litem are participating in a state-sponsored volunteer program. The program is administered by the Civil Court and is overseen by Court staff, who are employees of the State, see Judiciary Law § 39(6). The guardians ad litem are selected and trained by Court staff, and the Court has the power to remove individuals from the list of those available to serve. We thus believe that the particular characteristics of this program indicate state sponsorship.

Because you have indicated that these guardians ad litem receive no compensation, and thus are clearly "volunteers," and that they receive a letter from Court staff indicating their selection to the guardian ad litem program, we are of the opinion that these guardians ad litem are eligible for state-provided defense and indemnification as "volunteer[s] expressly authorized to participate in a state-sponsored volunteer program" pursuant to Public Officers Law § 17.

Very truly yours,

ELIOT SPITZER
Attorney General