S T A T E O F N E W Y O R K
________________________________________________________________________
150--A
Cal. No. 421
2023-2024 Regular Sessions
I N S E N A T E
(PREFILED)
January 4, 2023
___________
Introduced by Sens. GIANARIS, HOYLMAN-SIGAL, KRUEGER -- read twice and
ordered printed, and when printed to be committed to the Committee on
Ethics and Internal Governance -- recommitted to the Committee on
Ethics and Internal Governance in accordance with Senate Rule 6, sec.
8 -- committee discharged and said bill committed to the Committee on
Judiciary -- reported favorably from said committee, ordered to first
and second report, ordered to a third reading, amended and ordered
reprinted, retaining its place in the order of third reading
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
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD01880-02-4
S. 150--A 2
EMPLOYEE'S public employment or duties unless such appearance occurs in
the normal course of the public employment or duties of such employee.
(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
S. 150--A 3
arise where such civil action or proceeding is brought by or on behalf
of the state.
(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.
