Determining eligibility for representation and indemnification of public employees being sued

Determining eligibility for representation and indemnification of public employees being sued Salino v Cimino, 1 N.Y.3d 166 Public Officers Law Sections 17 [state officers and employees] and 18 [municipal employees] and other local laws provide for the representation and, if found liable, the indemnification, of officers and employees of the jurisdiction who are being sued — a significant benefit to such individuals. Key to claiming such a benefit, however, is that the individual is being sued as a result of his or her performing his or her official duties, as the Salino case demonstrates. Suffolk County police officer Gary Salino was served with the summons and complaint in a Federal action [Corey Kay and Winfield Properties, Ltd. v County of Suffolk et al, Civil Action No. 00-1161] in both his personal and his official capacities. Suffolk County Attorney Robert J. Cimino denied Salino's request for representation by the County in the Federal action after he determined that Salino "[was] not acting within the scope of [his] public duties or employment in connection with the incidents which form the basis for [the Federal complaint]." Salino sued, contending that he was entitled to such representation pursuant to the Suffolk County Code Section 35-3 (as amended by Local Law 6-1985).* Justice Berler, citing the Appellate Division decision in Bestafka v Suffolk County, 121 AD2d 670, observed that in Bestafka the Appellate Division said that "we interpret Local Laws, 1985, No. 6(3)(a) of Suffolk County as providing that in all actions against county employees, the initial determination of whether the county will provide a defense is to be made by the County Attorney on the basis of whether or not the employee's acts giving rise to the suit were 'within the scope of his public employment.'" Justice Berler then noted that the County Attorney's determination may only be judicially set aside if it is found to be arbitrary and capricious. The court sustained the County Attorney's decision, commenting that a report by the Suffolk County Police Department's Internal Affairs Bureau of its investigation into complaints filed by Kay alleging false arrest and improper performance by both Salino and his co-defendant in the Federal action states that "[Salino's] part in the arrest of Kay came about as a result of [his] personal interest in real estate activities engaged in by Kay and his associates." Concluding that Cimino's decision was neither arbitrary nor capricious, the court dismissed Salino's petition. The Court of Appeals agreed, stating: Here, the factual record supports the County Attorney's determination that petitioner's alleged acts of wrongdoing against Kay were the consequence of his private interest as a property owner, not his public responsibility as a police officer. That he was acting to protect and advance his private self-interest is demonstrated, for example, by his individual FOIL requests, by his statements submitted as a long-time community member, not as a police officer, in support of criminal charges against Kay, and by the proceedings in his name challenging Kay's use of the property. Plainly, the County Attorney's determination denying him a defense was neither arbitrary nor capricious. * The relevant section of the County Code states that "the County shall provide for the defense of the employee in any civil action or proceedings in any state or federal court or administrative agency arising out of any alleged act or omission which occurred or is alleged in the complaint to have occurred while the employee was acting or in good faith purporting to act, within the scope of his public employment or duties … [and] [t]he determination of an issue of whether or not an employee was acting within the scope of his public employment or duties at the time … shall be made in the first instance by the County Attorney."

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