Judges: DENNIS C. VACCO, Attorney General
Filed Date: 12/4/1998
Status: Precedential
Modified Date: 7/5/2016
Hon. Timothy S. Care Formal Opinion No. 98-F11 Chairman and Executive Director State Consumer Protection Board 5 Empire State Plaza, Suite 2101 Albany, N Y 12223-1556
Dear Chairman Carey:
Your counsel has asked whether the Consumer Protection Board ("CPB") or its employee representative on the Advisory Board of the newly created Targeted Accessibility Fund needs insurance protection from potential liability associated with any official actions the Advisory Board may take. Your counsel has advised us that the Public Service Commission recently ordered creation of the Targeted Accessibility Fund ("TAF") to finance certain universal telephone service programs such as Lifeline, E-911 and Telecommunications Relay Service for the hearing impaired. Commission Opinion No. 98-10.
The Public Service Commission ordered the TAF to be administered by the New York Intrastate Access Settlement Pool, subject to the Commission's oversight. A ten-member Advisory Board also will oversee TAF operations, in compliance with the Commission order and a Procedural Manual approved by the Commission. That Manual provides that the Advisory Board is to be comprised of telecommunications industry and consumer group representatives, including one representative from the CPB. Your counsel has advised us that you have designated a CPB employee to serve as the permanent representative on the Advisory Board. Counsel has asked whether insurance is required to shield the CPB and the designated employee from liability associated with any official actions the Advisory Board may take.
Section
We reached a similar conclusion in a prior opinion, finding that section 17 covered employees of the State Department of Labor who served as members of private industry councils established under the provisions of the United States Job Training Partnership Act. Op Atty Gen No. 87-F10. In that opinion we noted that the governing statute required that councils include representatives of the public employment service. We also noted that the Department of Labor considered service on the councils to be part of the employees' job duties for the Department. The same rationale applies here. The Public Service Commission has provided in the Procedural Manual governing TAF operations that the TAF Advisory Board is to include a representative from the CPB. Service on the Advisory Board thus falls within the scope of duties of the CPB employee and, provided section 17 procedural requirements are met, he or she is entitled to the protections of section 17.
Thus, if the CPB's employee representative on the TAF Advisory Board is content to have the Office of the Attorney General ("OAG") provide his defense pursuant to Public Officers Law §
Counsel also has asked whether the CPB should acquire insurance to protect it from liability for actions of the Advisory Board. The CPB is part of State government. Executive Law §
Division of the Budget Bulletin B-1129 dated October 27, 1992 provides that payments for judgments or settlements not covered by either of the two above-described general appropriations (for liabilities against the State in the Court of Claims or for liabilities against State employees pursuant to Public Officers Law §
Backpay awards in any court against the State or the CPB;
Monetary awards in any court, other than the Court of Claims, against the State or the CPB; and
Counsel fees and other litigation expenses awarded under the Equal Access to Justice Act (CPLR, Article 86) against the State, the CPB, or its officials acting in their official capacities.
Other examples are listed in the Bulletin.
It seems unlikely that the CPB or its employee representative on the TAF Advisory Board would be subjected to liability in any of those exceptional situations. To the extent that the CPB is concerned about liability in those exceptional situations, it could consider the possibility of insurance at reasonable cost.
We conclude that an employee of the Consumer Protection Board in serving as the representative on the Advisory Board to the Targeted Accessibility Fund is an employee in the service of the State who is covered by the provisions of Public Officers Law §
Very truly yours,
DENNIS C. VACCO
Attorney General