2012 New York Consolidated Laws
PBO - Public Officers
Article 2 - (3 - 19) APPOINTMENT AND QUALIFICATION OF PUBLIC OFFICERS
19 - Reimbursement of defense costs incurred by or on behalf of state employees.

 
    § 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.
    (f)  For  purposes  of this section, the term "employee" shall include
  directors, officers and employees of the dormitory authority;
    (g) For the purposes of this section only, the term  "employee"  shall
  include  any  member,  director, officer or employee of a soil and water
  conservation district created pursuant to section five of the  soil  and
  water  conservation  districts  law  who  is  working on a project which
  receives funding from the state and has received approval by  the  state
  soil and water conservation committee.
    (h)  For  the  purposes  of  this  section  and  consistent  with  the
  provisions of section 13 of a chapter of the laws of 1997, amending  the
  public  authorities law, the public health law, the public officers law,
  chapter 41 of the laws  of  1997  relating  to  providing  a  retirement
  incentive  for  certain  public  employees,  and  the civil service law,
  relating  to  the  creation  of  the  Roswell  Park   Cancer   Institute
  corporation   and   providing   for   the  rights,  powers,  duties  and
  jurisdiction of such corporation,  the  term  "employee"  shall  include
  directors,  officers  and employees of the Roswell Park Cancer Institute
  corporation.
    * (i) For purposes of this section, the term "employee" shall  include
  directors,  officers  and  employees  of  the  thruway authority and its
  subsidiary, the canal corporation. In those cases where  the  definition
  of  the  term  "employee"  provided in this paragraph is applicable, the
  term "state", as utilized in subdivisions two, three, and four  of  this
  section,  shall  mean  the  thruway  authority  when  the  employee is a
  director,  officer,  or  employee  of  the  thruway  authority,  or  its
  subsidiary,  the  canal  corporation,  when  the employee is a director,
  officer, or employee of the canal corporation.
    * NB There are 2 par (i)'s
    * (i) For the purposes of this  section,  the  term  "employee"  shall
  include  directors,  officers,  and  employees of the Governor Nelson A.
  Rockefeller empire state plaza performing arts center corporation.

    * NB There are 2 par (i)'s
    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.