Land Use Training Program for Municipal Planning and Zoning Officials Presented by: Peter Bee, Esq., Partner, Bee Ready Fishbein Hatter & Donovan, LLP Michael H. Sahn, Esq., Managing Partner, Sahn Ward Coschignano, PLLC
What is Indemnification? •
Indemnification - The act of compensating for loss or damage sustained.
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New York State Public Officers Law §18 provides for a statutory scheme of defense and indemnification for public officials for local municipalities. For this scheme to take effect in any municipality, it must be enacted by local law.
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Municipalities have the alternatives of: (1) enacting Public Officers Law §18 verbatim; or (2) supplementing Public Officers Law §18; or (3) adopting their own policy.
Highlights of Public Officers Law §18 •
How does the statute work?
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The statute DOES NOT provide indemnity for any alleged criminal actions, except in certain circumstances if adopted by the local municipality. See Public Officers Law § 19.2(a); Zimmer v. Town of Brookhaven 247 A.D.2d 109 (2d Dep’t 1998)
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The municipality shall provide for the defense of the employee in any civil action or proceeding, state or federal, arising out of any alleged act or omission which occurred or allegedly occurred while the employee was acting within the scope of the employees public employment or duties.
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Officials are not indemnified for punitive damages unless the municipality adopts §18 and supplements its language.
o Employees must provide chief legal officer of municipality or chief administrative officer a written request for a defense together with documents that have been served on the employee within ten days o Employee must fully cooperate
What is Immunity? Absolute or Qualified Immunity? •
Public officials can qualify for either absolute or qualified immunity
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Absolute Immunity is granted to quasi-judicial and legislative officials. Under this immunity, the officials are free not only from the consequences of the litigation's results but also from the burden of defending oneself altogether
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Quasi-judicial officials are those whose duties are comparable to those of judges or prosecutors. They include Zoning Board members.
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Legislative officials are those who duties are within the “sphere of legitimate legislative activities.” They include Town, County, or Village Board members.
Absolute or Qualified Immunity? •
Qualified Immunity allows a government official to avoid the expense and disruption of litigation as long as the official’s “conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
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However, actions done maliciously, in bad faith, or for an improper purpose eliminates the immunity. See, Messerschmidt v. Millender, 132 S.Ct. 1235, 1244 (2012).
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Test for Qualified Immunity: 1. No reasonable jury could conclude that the officer acted unreasonably in light of the established law 2. It is objectively reasonable for the employee to believe their actions were lawful at the time
Insurance for Indemnification and Defense •
General Municipal Law § 52: Each municipality is authorized to purchase liability insurance with reasonable limits to protect its officers and employees against liability arising from their acts while exercising or performing or in good faith purporting to exercise or perform their powers or duties within scope of their employment.
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Must consult with the municipalities insurance consultant, broker or agent
Suits Under 42 USCA 1983 •
Qualified immunity also protects government officials from federal litigation such as §1983 Civil Rights claims.
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The government official must have been acting in good faith during the alleged action to qualify for the immunity. o The “good faith” standard is objective and measures reasonableness without regard to the official's subjective state of mind.
Religious Land Use and Institutionalized Persons Act (RLUIPA) •
Federal courts have repeatedly held that: o “. . . RLUIPA does not provide a cause of action against state officials in their individual capacity. . . .” Washington v. Gonyea, 731 F.3d 143, 145 (2d Cir. 2013).
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“In other words, government officials will be immune from liability in a RILUPA action if they can establish that it was objectively reasonable for them to believe their actions were lawful at the time.” Demorat v. Zegarelli, 451 F.3d 140, 148 (2d Cir. 2006).
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Public officials also enjoy qualified immunity when it comes to RLUIPA actions
Practical Tips to Avoid Circumstances that Could Lead to Claims •
Make sure you know the scope of your duties and responsibilities, and DO NOT act outside that scope
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Conduct yourself professionally at all times
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DO NOT send emails or memos about cases or pending matters with substantive comments or comments that could be interpreted as derogatory, negative or prejudicial to an applicant or any individuals associated with the matter.
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DO NOT make unnecessary comments on the public record or off the record that could be interpreted as derogatory, negative or prejudicial to an applicant or any individuals associated with the matter.
Practical Tips (continued) •
DO NOT ask questions at a public session that are or could be embarrassing to any individual or interpreted as prejudicial, derogatory, or biased.
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DO NOT write commentary involving matters under your consideration in the media (newspapers) or post commentary on social media (Facebook, Instagram, Twitter, etc.).
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ALWAYS ask for advice from counsel and follow counsel’s advice.