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2000 Ops. St. Comp. 1 (2000)

handle is hein.nyscompop/nyscomo2000 and id is 1 raw text is: Opinion 2000-1

Opinion 2000 - 1
This opinion represents the views of the Office of the State Comptroller at the time it was
rendered. The opinion may no longer represent those views if, among other things, there have
been subsequent court cases or statutory amendments that bear on the issues discussed in
the opinion.
CLAIMS -- Payment (of police officers' legal fees as moral obligation)
LOCAL LAWS -- Compensation (authority to pay police officers' legal fees) -- Municipal Funds
(authority to pay police officers' legal fees)
MUNICIPAL FUNDS -- Appropriations and Expenditures (authority to pay police officers' legal fees)
POLICE AND POLICE PROTECTION -- Compensation (authority to pay legal fees)
PUBLIC OFFICERS AND EMPLOYEES -- Compensation (authority to pay police officers' legal fees)
-- Legal Expenses (authority to pay police officers' legal fees)
VILLAGES -- Powers and Duties (authority to pay police officers' legal fees)
GENERAL MUNICIPAL LAW, §50-j; MUNICIPAL HOME RULE LAW, §10; STATE CONSTITUTION,
ARTICLE VIII, §1; PUBLIC OFFICERS LAW, §18; VILLAGE LAW, §§4-412(3)(3), 5-524(7): As a rule,
in the absence of pre-existing authority pursuant to a State statute, local law or collective bargaining
agreement provision, a village may not pay legal expenses incurred by village police officers in
connection with criminal proceedings. A village may not pay as a moral or equitable obligation legal
expenses of village police officers arising out of allegations of misconduct.
This is in reply to your request for our opinion concerning the payment by a village of certain legal
fees incurred by village police officers. You state that three members of the village's police force
testified before a grand jury under a waiver of immunity because of their involvement in the fatal
shooting of a civilian. The grand jury determined that the shooting was justified and no criminal
charges were instituted against the police officers. You also state that during the District Attorney's
investigation and the proceedings before the grand jury, the police officers were represented by
attorneys whom they retained on their own. The police officers did not ask the village to provide them
with legal representation and the village board of trustees did not authorize the attorneys to provide
the representation. You have also advised us that the village has adopted the provisions of section 18
of the Public Officers Law.
Under these circumstances, you ask whether the village is legally obligated by statute to pay the
police officers' legal fees. If not, you also ask whether the village may pay the legal fees as a moral
or equitable obligation.
As a rule, a municipality may not provide legal counsel for a municipal officer or employee who is
charged with a criminal offense arising out of the performance of his or her official duties in the
absence of pre-existing authority pursuant to a State statute, local law or collective bargaining
agreement provision (see Zimmer v Town of Brookhaven, 247 AD2d 109, 678 NYS2d 377; 1990
Opns St Comp No. 90-47, p 104; see also, e.g., Corning v Village of Laurel Hollow, 48 NY2d 348, 422
NYS2d 932; Cahn v Town of Huntington, 29 NY2d 451, 328 NYS2d 672; Matter of Chaoman v City of
New York, 168 NY 80; Security v County of Albany, 96 AD2d 976, 466 NYS2d 841, affirmed 61 NY2d
965, 475 NYS2d 280; Schieffelin v Henry, 123 Misc 792, 206 NYS 172, affirmed 211 App Div 850,
207 NYS 914; 1985 Opns St Comp No. 85-22, p 29).(1) Providing a defense at municipal expense
pursuant to such pre-existing authority does not constitute a gift in violation of article VIII, §1 of the
State Constitution because the defense is considered additional remuneration for services rendered
(see Coming, supra; Security, supra; Schieffelin, suora; cf. Matter of Chaoman suora).
There does not appear to be a State statute pursuant to which the village is authorized or required to
pay the legal fees at issue. Section 18 of the Public Officers Law is the principal defense and
indemnification statute for municipal officers and employees. Insofar as here relevant, section 18
generally requires a village which has adopted the provisions of that section to provide for the defense
of its officers and employees in any civil action or proceeding arising out of any alleged act or
omission which occurred or allegedly occurred while the officer or employee was acting within the
scope of his or her public employment or duties (Public Officers Law, §1 8[2][a]).2) The provisions of
section 18, however, do not authorize a municipality to provide a defense in a criminal proceeding

Opinion 2000 - 1

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