Williams v. Rensselaer County Board of Elections

Main, J. P., and Yesawich, Jr., J.,

dissent and vote to reverse in the following memorandum by Yesawich, Jr., J. Yesawich, Jr., J. (dissenting). We respectfully dissent. The express purpose of Local Laws, 1983, No. 5 of County of Rensselaer is "to provide for the defense and indemnification of officers and employees of the County of Rensselaer in accordance with Public Officer’s [sic] Law Section 18 and County Law Section 501, as amended by Chapter 277 of the Laws of 1981.” In characterizing when a defense is to be furnished, Local Laws, 1983, No. 5 of County of Rensselaer § 3 essentially tracks Public Officers Law § 18 (3), and the legislative history underlying section 18 substantiates the County of Rensselaer’s contention that a defense at public expense is available only to public employees "who are sued civilly for alleged acts or omissions occurring while they were acting within the scope of their public employment or duties” (Governor’s memorandum, 1981 NY Legis Ann, at 159). The Law Revision Commission, which proposed the bill, likewise perceived its scope as ensuring that those in public employment would "not be called upon to personally defend themselves against claims arising out of the daily operation of the government or to account in damages therefor” (1981 Report of NY Law Rev Commn, Legis Doc No. 65, at 220-221).

Although Local Laws, 1983, No. 5 of County of Rensselaer § 3 [b] provides for public payment of private counsel "whenever a court * * * determines that a conflict of interest exists”, this language must be interpreted in a manner consistent with the over-all purpose of the law. Thus, where defense of the employee in a civil action or proceeding does indeed genuinely conflict with the county’s interest, the employee is entitled to be represented by counsel of his choice and payment of counsel fees and expenses is chargeable to the public fisc. But when, as here, the claimed conflict consists of nothing more than the public employee’s disaffection with the county’s position on a matter, that does not trigger the law’s safeguards (see, Local Laws, 1983, No. 5 of County of Rensselaer § 3 [e]). To rule otherwise would permit any public employee who disagrees with the county’s stance on a particular issue to initiate his own involvement in the ensuing litigation at public expense. The legislation neither envisions nor authorizes such a paradoxical result.

We would therefore reverse Special Term’s order and deny the application.