Senate Bill S3868

                                
 
BILL NUMBER: S3868

SPONSOR: TEDISCO
 
TITLE OF BILL:

An act to amend the county law, in relation to allowing a county clerk
to employ an attorney-at-law to defend against certain civil actions;
and to amend the public officers law, in relation to the removal of
public officers by the governor

 
PURPOSE OR GENERAL IDEA OF BILL:

To eliminate a potential gap in state law. When County Clerks act in
their county capacity, they are protected by section 409 of the County
Law. It is not clear whether their actions as agents of the state
Commissioner of Motor Vehicles are covered under that section, creating
a possible void in the law. In any event, while acting as an agent of
the state, the clerk's defense and indemnification should be provided by
the state and not local taxpayers.

The bill would also insure that removal actions are not undertaken by
the Governor against local officials when such officials act in good
              

faith and with a reasonable belief that they are upholding their oath of
office and the law.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1 of this bill provides that the defense and indemnification of
county clerks in actions or proceedings based on action or inaction as
an agent of the state DMV commissioner should be a state expense and
that defense and indemnification should be provided when the clerk acts
in good faith. Section 2 of this bill limits those circumstances under
which the Governor may bring a proceeding to remove a local public offi-
cial.

 
EFFECTS OF THE PRESENT LAW WHICH THIS BILL WOULD AFFECT:

Adds a new subdivision 3 to section 409 of the county law and amends
subdivision 1 of section 34 of the public officer's law.

 
JUSTIFICATION:

County clerks, in most counties of the state, are designated as agents
of the Commissioner of Motor Vehicles for the purpose of issuing and
renewing driver's licenses, non-driver IDs and registrations. Clerks are
elected officials in the counties they serve and are not given any addi-
tional compensation by the state for handling the DMV functions. While
the county may get processing fees, such fees are meant to cover the
costs of operating the county clerk's DMV operations. State public offi-
cers are provided defense and indemnification at state expense. There-
fore, it is reasonable that the state should provide for the defense and
indemnification of county clerks when they are performing state func-
tions so long as the clerks discharge their state duties in good faith.
It has recently been suggested that the state DMV Commissioner or the
Governor could take action against county clerks who refuse to issue
driver's licenses to illegal aliens who cannot produce valid Social
Security Numbers or documentation of their ineligibility for the same.


Some clerks have expressed the view that the new policy violates the law
and were they to follow the policy they would be violating the law and
their oath of office. Those clerks should not be penalized for acting in
good faith with a reasonable belief that the new policy violates the law
when this issue has not been subject to legislative or judicial scrutiny
and when the opportunity exists for such illegal aliens to visit state
DMV operated offices to obtain their licenses.  A small minority of
county clerks supports the new policy, but they too face possible liti-
gation if they comply with the new DMV policy.  The defense of such
litigation should be a state expense and not a county expense. The new
DMV policy puts the County Clerks in the difficult position of either
complying with the policy and facing action because they are violating
the law or refusing to comply with the policy and facing potential state
action or even removal from office. Elected public officials who have
dutifully served the public and this state should not be placed in this
position and should be protected from frivolous claims or heavy-handed
attempts to compel them to comply with a policy that they reasonably
believe to be illegal.

 
PRIOR LEGISLATIVE HISTORY:

New Bill.

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

None to minimal.

 
EFFECTIVE DATE:
This act shall take effect immediately.