Article 37
Indemnification
37.1 Pursuant to Section 24 of the Correction Law and Section 19.14 of the Mental Hygiene Law, no civil action shall be brought in any court of the State, except by the Attorney General on behalf of the State, against any officers or employees of the Office of Alcoholism and Substance Abuse Services who are charged with the duties of securing custody of a drug dependent person or a person in need of care and treatment for alcoholism, or against any officers or employees of the Department of Correctional Services in their personal capacity for damages arising out of any act done or the failure to perform any act within the scope of employment and in the discharge of duties by any such officers or employees. Any claim for damages arising out of any act done or the failure to perform any acts within the scope of the employment and in the discharge of the duties of such officers or employees shall be brought and maintained in the Court of Claims as a claim against the State.
37.2 The Employer shall continue the existing policies as established by Section 19.14 of the Mental Hygiene Law. Pursuant to said Section 19.14 of the Mental Hygiene Law, the State shall save harmless and indemnify those officers and employees specified in Article 37.1 from financial loss resulting from a claim filed in a court of the United States for damages arising out of an act done or the failure to perform any act that was (1) within the scope of the employment and in the discharge of the duties of such officer or employee, and (2) was not in violation of any rule or regulation of the Office of Alcoholism and Substance Abuse Services or of any statute or governing case law of the State or of the United States at the time the alleged damages were allegedly sustained; provided that the officer or employee shall comply with the provisions of Subdivision four of Section 17 of the Public Officers Law.
The provisions of Section 19.14 of the Mental Hygiene Law shall supplement, and be available in addition to, the provisions of Section 17 of the Public Officers Law and, insofar as said Section 19.14 is inconsistent with Section 17 of the Public Officers Law, the provisions of said Section 19.14 shall be controlling.
The provisions
of said Section 19.14 shall not be construed in any way to impair, modify or
abrogate any immunity available to any officer or employee of the officer under
the statutory or decisional law of the State or the
37.3 The Employer acknowledges its obligation to provide for the defense of its employees, and to save harmless and indemnify such employees from financial loss as hereinafter provided, to the broadest extent possible consistent with the provisions of Section 17 of the Public Officers Law in effect upon the date of the execution of this Agreement.
37.4 The Employer agrees to provide for the defense of employees as set forth in Subdivision two of Section 17 of the Public Officers Law 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 employees were acting within the scope of their public employment or duties, or which is brought to enforce a provision of Section 1981 or 1983 of title forty-two of the United States Code. 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, provided further, that the duty to defend or indemnify and save harmless shall be conditioned upon (1) delivery to the Attorney General or an assistant attorney general at an office of the Department of Law in the State by the employees of the original or a copy of any summons, complaint, process, notice, demand or pleading within five days after they are served with such document, and (2) the full cooperation of such employees in the defense of such action or proceeding and in defense of any action or proceeding against the State based upon the same act or omission, and in the prosecution of any appeal. Such delivery shall be deemed a request by such employees that the State provide for their defense pursuant to this Section.
37.5 The Employer agrees to indemnify and save harmless its employees as set forth in subdivision three of Section 17 of the Public Officers Law in the amount of any judgment obtained against such employees in any State or Federal court, or in the amount of any settlement of a claim, provided that the act or omission from which such judgment or settlement arose occurred while the employees were acting within the scope of their public employment or duties. The duty to indemnify and save harmless prescribed by this Section shall not arise where the injury or damage resulted from intentional wrongdoing on the part of the employees, provided further, that nothing contained herein shall authorize the State to indemnify or save harmless an employee with respect to fines or penalties, or money recovered from an employee pursuant to Article 7-A of the State Finance Law.
37.6 Employees shall inform their supervisor when they request a legal defense or seek indemnification from the Attorney General under paragraphs 37.3, 37.4 or 37.5 above. In addition, paragraphs 37.3, 37.4 and 37.5 of this Article shall not apply to employees of the Department of Correctional Services or the Office of Alcoholism and Substance Abuse Services to the extent they are covered by paragraphs 37.1 and/or 37.2 of this Article.
37.7 The Employer agrees to reimburse its employees to the broadest extent possible consistent with the provisions of Section 19 of the Public Officers Law in effect upon the date of the execution of this Agreement. Upon compliance by the employee with subdivision 3 of Section 19 of the Public Officers Law, 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/her 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/her public employment or duties upon his/her acquittal or upon the dismissal of the criminal charges against him/her 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/her public employment or duties unless such appearance occurs in the normal course of the public employment or duties of such employee.
Upon the application for reimbursement for reasonable attorneys' fees or litigation expenses, or both, made by or on behalf of an employee as hereinbefore provided, the Attorney General shall determine, based upon his investigation and his 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. 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.
Reimbursement of reasonable attorneys' fees or litigation expenses, or both, by the State as prescribed by this Section shall be conditioned upon (1) delivery to the Attorney General or an assistant attorney general at an office of the Department of Law in the State by the employee of a written request for reimbursement of expenses together with, in the case of a criminal proceeding, the original or a copy of an accusatory instrument within 10 days after he/she is arraigned upon such instrument or, in the case of a grand jury appearance, written documentation of evidence of such appearance and (2) the full cooperation of the employee in defense of any action or proceeding against the State based upon the same act, and in the prosecution of any appeal.