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This entry was published on 2017-01-13
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SECTION 19
Reimbursement of defense costs incurred by or on behalf of state employees
Public Officers (PBO) CHAPTER 47, ARTICLE 2
§ 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 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.

(j) For purposes of this section, the term "employee" shall include
directors, officers and employees of the thruway authority, and the
directors, officers and employees of 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 the canal corporation, when the employee is a director,
officer, or employee of the canal corporation.

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.