S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  148--A
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                                (PREFILED)
 
                              January 4, 2023
                                ___________
 
 Introduced  by M. of A. CRUZ, SILLITTI, SIMONE -- read once and referred
   to the Committee on Governmental  Operations  --  recommitted  to  the
   Committee  on Governmental Operations in accordance with Assembly Rule
   3, sec. 2 -- committee discharged, bill amended, ordered reprinted  as
   amended and recommitted to said committee
 
 AN  ACT  to  amend  the  public officers law, in relation to prohibiting
   reimbursement of campaign and political committees and  legal  defense
   funds for defense costs incurred on behalf of state employees
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Subdivision 2 of section 19 of the public officers law,  as
 amended  by  chapter  769  of  the  laws  of 1985, is amended to read as
 follows:
   2. (a) Upon compliance by the employee with the provisions of subdivi-
 sion three of this section, and subject to THE RESTRICTIONS SET FORTH IN
 PARAGRAPH (B) OF THIS SUBDIVISION AND the conditions set forth in  para-
 graph  [(b)]  (C) 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] SUCH EMPLOYEE'S  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]
 SUCH  EMPLOYEE'S  public employment or duties upon [his] SUCH EMPLOYEE'S
 acquittal or upon the dismissal of the criminal  charges  against  [him]
 THE  EMPLOYEE  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]  THE
 EMPLOYEE'S  public employment or duties unless such appearance occurs in
 the normal course of the public employment or duties of such employee.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD01880-03-4
              

 A. 148--A                           2
 
   (b)  NO REIMBURSEMENT SHALL BE PAID PURSUANT TO THIS  SECTION  TO  ANY
 CAMPAIGN  OR  POLITICAL COMMITTEE OR LEGAL DEFENSE FUND THAT PAYS ALL OR
 ANY PORTION OF AN EMPLOYEE'S REASONABLE  ATTORNEYS'  FEES  AND/OR  LITI-
 GATION EXPENSES. REIMBURSEMENTS RECEIVED PURSUANT TO THIS SECTION BY THE
 EMPLOYEE  OR  THEIR  LEGAL COUNSEL SHALL NOT BE PAID BY SUCH EMPLOYEE OR
 LEGAL COUNSEL TO A CAMPAIGN OR  POLITICAL  COMMITTEE  OR  LEGAL  DEFENSE
 FUND.  FURTHERMORE,  AN EMPLOYEE ON WHOSE BEHALF A LEGAL DEFENSE FUND OR
 LEGAL DEFENSE FUNDS HAVE BEEN ESTABLISHED  SHALL  NOT  BE  ELIGIBLE  FOR
 REIMBURSEMENT  PURSUANT TO THIS SECTION UNTIL ALL MONEYS IN SUCH FUND OR
 FUNDS HAVE BEEN EXPENDED FOR THE EMPLOYEE'S REASONABLE  ATTORNEYS'  FEES
 AND/OR  LITIGATION  EXPENSES.  PRIOR  TO  REIMBURSEMENT BEING ISSUED, AN
 EMPLOYEE AND THEIR LEGAL COUNSEL SHALL  CERTIFY  TO  BOTH  THE  ATTORNEY
 GENERAL  AND  THE  COMPTROLLER  THAT THERE ARE NO FUNDS REMAINING IN ANY
 LEGAL DEFENSE FUND ESTABLISHED ON BEHALF OF THE  EMPLOYEE  AND  THAT  NO
 MONIES  REQUESTED  PURSUANT  TO THIS SECTION WILL BE USED TO REIMBURSE A
 CAMPAIGN OR POLITICAL COMMITTEE OR LEGAL DEFENSE FUND.
   (C) 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] THEIR investigation and [his] THEIR
 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.
   §  2. Subdivision 2 of section 17 of the public officers law, as added
 by chapter 466 of the laws of 1978 and paragraph (a) as amended by chap-
 ter 768 of the laws of 1985, is amended to read as follows:
   2. (a) Upon compliance by the employee with the provisions of subdivi-
 sion four of this section, the state shall provide for  the  defense  of
 the  employee  in any civil action or proceeding in any state or federal
 court arising out of any alleged act or omission which  occurred  or  is
 alleged  in the complaint to have occurred while the employee was acting
 within the scope of [his] THE EMPLOYEE'S public employment or duties; or
 which is brought to enforce a  provision  of  section  nineteen  hundred
 eighty-one  or  nineteen  hundred eighty-three of title forty-two of the
 United States code  and  the  act  or  omission  underlying  the  action
 occurred  or  is  alleged  in  the  complaint to have occurred while the
 employee was acting within the scope  of  [his]  THE  EMPLOYEE'S  public
 employment  or  duties.    This  duty to provide for a defense shall not
 arise where such civil action or proceeding is brought by or  on  behalf
 of the state.
 A. 148--A                           3
 
   (b)  Subject  to  the  conditions  set  forth in paragraph (a) of this
 subdivision, the employee shall be entitled to  be  represented  by  the
 attorney general, provided, however, that the employee shall be entitled
 to  representation  by private counsel of [his] THE EMPLOYEE'S choice in
 any  civil  judicial proceeding whenever the attorney general determines
 based upon [his] THEIR investigation and review of the facts and circum-
 stances of the case that representation by the attorney general would be
 inappropriate, or whenever  a  court  of  competent  jurisdiction,  upon
 appropriate  motion  or  by  a  special  proceeding,  determines  that a
 conflict of interest exists and that the  employee  is  entitled  to  be
 represented  by  private  counsel  of  [his]  THE EMPLOYEE'S choice. The
 attorney general shall notify the employee in writing of  such  determi-
 nation  that the employee is entitled to be represented by private coun-
 sel. The attorney general may require, as a condition to payment of  the
 fees  and  expenses  of  such representation, that appropriate groups of
 such employees be represented by the same counsel.  If the  employee  or
 group  of  employees  is  entitled  to representation by private counsel
 under the provisions of this section,  the  attorney  general  shall  so
 certify  to  the  comptroller. Reasonable attorneys' fees and litigation
 expenses shall be paid by the state to such private counsel from time to
 time during the pendency of the civil action or  proceeding  subject  to
 certification  that the employee is entitled to representation under the
 terms and conditions of this section by  the  head  of  the  department,
 commission,  division,  office  or  agency  in  which  such  employee is
 employed [and] upon the  audit  and  warrant  of  the  comptroller,  AND
 SUBJECT  TO THE RESTRICTIONS SET FORTH IN PARAGRAPH (C) OF THIS SUBDIVI-
 SION. Any dispute with respect to representation of  multiple  employees
 by  a single counsel or the amount of litigation expenses or the reason-
 ableness of attorneys' fees shall be resolved by the court  upon  motion
 or by way of a special proceeding.
   (c) NO FUNDS SHALL BE PAID PURSUANT TO THIS SECTION TO ANY CAMPAIGN OR
 POLITICAL  COMMITTEE  OR  LEGAL DEFENSE FUND. FUNDS RECEIVED PURSUANT TO
 THIS SECTION BY THE EMPLOYEE OR THEIR LEGAL COUNSEL SHALL NOT BE PAID BY
 SUCH EMPLOYEE OR LEGAL COUNSEL TO A CAMPAIGN OR POLITICAL  COMMITTEE  OR
 LEGAL  DEFENSE  FUND.  FURTHERMORE,  AN EMPLOYEE ON WHOSE BEHALF A LEGAL
 DEFENSE FUND OR LEGAL DEFENSE FUNDS HAVE BEEN ESTABLISHED, SHALL NOT  BE
 ELIGIBLE  FOR  PAYMENT PURSUANT TO THIS SECTION UNTIL ALL MONEYS IN SUCH
 FUND OR FUNDS HAVE BEEN EXPENDED FOR THE  EMPLOYEE'S  REASONABLE  ATTOR-
 NEYS' FEES AND/OR LITIGATION EXPENSES. PRIOR TO PAYMENT BEING ISSUED, AN
 EMPLOYEE  AND  THEIR  LEGAL  COUNSEL  SHALL CERTIFY TO BOTH THE ATTORNEY
 GENERAL AND THE COMPTROLLER THAT THERE ARE NO  FUNDS  REMAINING  IN  ANY
 LEGAL  DEFENSE  FUND  ESTABLISHED  ON BEHALF OF THE EMPLOYEE AND THAT NO
 MONIES REQUESTED PURSUANT TO THIS SECTION WILL BE USED  TO  REIMBURSE  A
 CAMPAIGN OR POLITICAL COMMITTEE OR LEGAL DEFENSE FUND.
   (D) Where the employee delivers process and a request for a defense to
 the  attorney  general  as required by subdivision four of this section,
 the attorney general  shall  take  the  necessary  steps  including  the
 retention  of private counsel under the terms and conditions provided in
 paragraph (b) of subdivision two  of  this  section  on  behalf  of  the
 employee  to avoid entry of a default judgment pending resolution of any
 question pertaining to the obligation to provide for a defense.
   § 3. This act shall take effect immediately and  shall  apply  to  any
 pending  claim  not paid by the state before such effective date, and to
 any new claim submitted to the state on or after such effective date.