Below is an explanation given by SAANYS (there seem to be no contacts for Region 3, Manhattan, Queens, Brooklyn, Kings, Bronx, Richmond, Staten Island). In my opinion, the immunity clause for educators and education administrators throughout NYC and NY State is still random and arbitrary, as NY Law Department Attorney Martin Bowe told me several years ago - after Stuyvesant High School AP Jay Biegelson, AP Eleanor Archie, and Principal Stanley Teitel ripped up my daughter's IEP, changed it, and took away her services without informing me, and then Bowe defended them in Federal Court - that he indemnified anyone he "wanted to [indemnify]", and the public pays. See Public Officer's Law Section 18.
Hold Harmless Clause (provision):
Definition of 'Hold Harmless Clause'
"A statement in a legal contract stating that an individual or organization is not liable for any injuries or damages caused to the individual signing the contract. An individual may be asked to sign a hold harmless agreement when undertaking an activity that involves risk for which the enabling entity does not want to be legally or financially responsible."
This clause/provision is similar to the
Absolute Immunity any judge has to make any decision he or she wants, and never be held accountable for this decision no matter how random, arbitrary or capricious it is.
America, shouldn't this legal protection of people, including judges, be denied as against our public rights to due process and justice?
Betsy Combier
From SAANYS:
As a first order of
business we must define the terms defense and indemnification. Defense and
indemnification really mean, “who pays?” That is to say, who pays when you, as
an employee in a school district, are named in a lawsuit. Defense means
something different than indemnification. Broadly defined, defense means paying
legal fees and other costs associated with the defense of the employee.
Indemnification broadly defined means the employer must pay damages and costs
that are adjudged against the employee.
However, there are
significant limitations and other nuances of the requirement of ‘who pays.’
These will be discussed in this article, along with important time frames
within which you must act if you get sued.
As some of you may
unfortunately know, when you are sued as a private citizen, you must pay for
your attorney and all the other costs in defending yourself. And if the court
finds against you, you must pay a judgment. The concept behind the defense and
indemnification statutes in the Education Law stems from the fact that you are
a government employee. As such, the legislature, as representative of the
people, has determined that education is serving a ‘public’ purpose. Therefore,
those employees serving in an industry that serves the public must have some
type of extended protection from lawsuits – the rationale being that the public
is best served by the uninterrupted operations of that industry and that those
employees subsequently must be free to perform the work of the public without
being subject to financial ruin as a result of lawsuits. The key of course is
that the person must be performing the work of the public. That is, his or her
actions were within the ‘scope of his employment.’
There are several statutes
related to defense and indemnification in the Education Law. These statutes
form a patchwork of protections. They range from a broad protection against any
civil suit to more limited narrow protections against certain criminal charges.
Education Law 3811
The broadest provision is
Education Law 3811. Quite succinctly, under 3811 the district must provide and
pay for an employee’s defense and damages judged against him or her in any
civil (not criminal) proceeding. But the employee must first meet two critical
requirements: 1) the employee must have notified the board of education in
writing within five days of being served; and 2) the court or the commissioner
of education must certify that the employee’s actions were within the scope of
his employment.
First, the employee should call his attorney and take his or her advice
accordingly. Immediately when served papers, an employee would write a simple
letter notifying the board of the lawsuit and make a request for defense and
indemnification. That person should also make a copy of the papers served and
include that with the letter. So to recap: When an employee gets served with
legal papers in any civil suit, they must, within five days, send a letter to
the board informing it of the suit and should include a copy of those papers.
You will know you are named
when you are served with legal papers by a process server. That is someone who
is not a party to the proceeding. These papers invariably come with a first
page with the word “NOTICE” conspicuously written on it. For example that page
may be a “Summons” or a “Notice of Petition.” This is a legal requirement
designed to clearly inform you that you have be named in a legal action so that
you can take action to defend yourself.
Education Law 3023
Under Education Law 3023,
an employee is protected from financial loss resulting from a lawsuit where his
or her accidental or negligent actions resulted in a person’s injury or damage
to school property. This applies on or off school property as long as that
employee’s actions were within the scope of his employment or volunteer duties
under the direction of the board. Again, the critical aspects are that the
employee is acting within the scope of his employment. And again, HURRY. This
time, the employee must supply a copy of the original papers to the board
within 10 days. There is no requirement that a written request for defense and
indemnification be made. However, the employee can never go wrong by including
such a letter and a copy of the papers. Play it safe and do it in five days.
Education Law Provision is
3028
Education Law 3028 includes
a series of defense, indemnification, and immunity provisions addressing the
ever-changing reality of student discipline issues in New York’s public
schools. Now you may note that I stated that ‘certain’ criminal allegations
were addressed in the Education Law. Here, 3028 states that the board must pay
the attorney’s fees and expenses for any employee charged in a civil suit or
criminal action as a result of disciplinary action the employee took towards a
student within the scope of the employee’s duties or authorized volunteer
activities. Again, 10 days to provide a copy or original of the papers served
with no letter requirement. But again, play it safe, write a letter and attach
a copy of the papers within five days.
Now you may have noticed
that 3023 and 3028 do not specify both defense and indemnification. 3023 says
‘protect from financial losses’ and 3028 specifies only ‘attorney’s fees and
expenses.’ This is a critical distinction because the courts have determined
that the board’s duty to defend an employee, i.e. pay the attorney, is broader
than the board’s duty to indemnify, i.e. pay a judgment against the employee.
Although a discussion of this distinction is outside the scope of this article,
suffice it to say that having your attorney paid for does not mean that you are
off the hook for the judgment or a portion of it against you. It is possible
that an employee can have his or her defense paid for and still be found to
have acted outside the scope of his or her employment for a portion of the acts
alleged and therefore, be held liable for some of the judgment.
Also, the requirement that
a court or the commissioner of education ‘certify’ that the employee’s actions
were within the scope of his or her employment may require that some
adjudication of the facts be made before it is finally
determined whether or not the employee’s actions were within the scope of his
or her employment. This, of course, takes time and presumably the employee may
have to front the attorney’s fees and expenses and seek reimbursement later.
Defense and Indemnification
Provision
Public Officers Law 18 was
designed to cover all government employees. It resembles a lengthy iteration of
Education Law 3811. Public Officers Law 18 can only apply to education
employees if the governing municipality has formally adopted it. For example,
if the City of Poughkeepsie adopted Public Officers Law 18, then the City
School District of Poughkeepsie and its employees could be subject to its
provisions.
Immunity
Immunity means an employee
is exempt from prosecution. Again, this applies only where the employee’s
actions were within the scope of his or her employment and so may require some
adjudication of the facts. Section 3028 has separately several immunity
provisions related to six different topics. They are: 1) student drug abuse, 2)
student alcohol abuse, 3) student weapons possession, 4) student acts of
violence, as well as 5) evidence of child abuse and 6) financial mismanagement
of district funds. All these provisions require that the employee act
“reasonably” and in “good faith” when they report such activity. The provisions
on financial mismanagement, weapons, and acts of violence have specific
retaliation protections built in. And the district is required to provide a
written explanation of the drug and child abuse reporting requirements to
employees annually. So, there is some immunity from prosecution if you act
reasonably and in good faith when reporting on the six topics named above.
Let’s Review
There are several simple
rules to remember. When served with papers, the employee must FIRST notify the
district (Play it safe and do it in five days every time, and include a copy of
the papers served on you.). AND, remember that an employee must always be
acting within the scope of his or her employment to receive the protections of
the defense and indemnification statutes. The protections apply only to civil
claims except for criminal allegations resulting from acts related to student
discipline. An example might be using physical force as reasonable restraint of
a child during a student fight.
Remember, play it safe.
Call SAANYS and speak directly with one of your attorneys to discuss a particular
situation.
