Providing employees with legal representation and reimbursement for legal fees and expenses incurred in defense of a civil action arising out work related activities

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Providing employees with legal representation andreimbursement for legal fees and expenses incurred in defense of a civil actionarising out work related activitiesThomas v New York City Dept. of Educ., 2012 NY SlipOp 04280, Appellate Division, First Department [See, also, Sagal-Cotler v Board of Educ. of City SchoolDist. of the City of N.Y., 2012 NY Slip Op 04281, Appellate Division,First Department]
The genesis of the Thomas action: An individual employed asa paraprofessional by the New York City Department of Education (DOE), soughtto obtain legal representation pursuant to Education Law §2560(1) when she wasnamed as the defendant in a civil action.*
To obtain legal representationpursuant to the statute in such a situation, however, the individual must meetthree requirements: 
1. He or she must have acted within the scope of heremployment;
2. He or she must have acted in the discharge of her duties;and
3. His or her action must not have been in violation anyrule or regulation of the DOE at the time of the incident.
The Corporation Counsel rejected the individual request forrepresentation and indemnification if held liable.
Noting that the Corporation Counsel is empowered by GeneralMunicipal Law §50-k(2) to make factual determinations in the first instance asto whether the individual violated any agency rule or regulation, which"determination may be set aside only if it lacks a factual basis and inthat sense, is arbitrary and capricious," the Appellate Division sustainedthe Corporation Counsel’s decision.
Although the individual denied the charges that had been filed against her,the court said that the allegations against her were "substantiated" at the conclusion ofan investigation. Significantly, said the Appellate Division, the individualdid not challenge the disciplinary findings against her.
Accordingly, the Corporation Counsel’s determination denyingthe individual with legal representation and indemnification in a civil actionarising out of this incident had a rational basis and was not arbitrary andcapricious, an abuse of discretion, or contrary to law.
In so ruling the Appellate Division sustained SupremeCourt’s holding that Education Law §2560, which incorporates by referenceGeneral Municipal Law §50-k, and Education Law §3028, are not in conflict andshould be read together and "applied harmoniously and consistently,"citing Alweis v Evans, 69 NY2d 199.
The Appellate Division explained that "It is the dutyof the courts to so construe two statutes that they will be in harmony, if thatcan be done without violating the established canons of statutoryinterpretation," (see McKinney's Consolidated Laws of New York, Book 1,Statutes §398).
In this instance the Appellate Division said that individualwas acting within the scope of her employment since the incident occurred in aclassroom but the alleged action, hitting a child on the head during a lesson,violated DOE Chancellor's Regulation A-420 as well as a Statewide ruleprohibiting corporal punishment (see 8 NYCRR 19.5[a][2]).
Accordingly, said the court, the alleged act was notundertaken in the discharge or furtherance of the individual’s duties as aschool employee, regardless of the purpose of the alleged act.  The decision notes that it is a fundamental rule ofstatutory construction that a court, "in interpreting a statute, shouldattempt to effectuate the intent of the Legislature" and the plain meaningof the statutory language is "the clearest indicator of legislativeintent.”
Both Education Law §§3028 and 2560 provide for the legalrepresentation and indemnification of Board of Education employees. However,they each set forth different circumstances under which such representation andindemnification are to be provided.
When read together, said the court, it is clear that,pursuant to Education Law §3028, a board of education must provide legalrepresentation and pay attorney's fees and expenses incurred in the defense ofan employee in any action arising out of a disciplinary action taken against astudent by an employee while acting in the scope of his or her employment andin the discharge of his or her duties, unless, pursuant to Education Law§2560(1), the employee is a member of a board of education in a city having apopulation of one million or more, and, pursuant to General Municipal Law §50-k,he or she violated any rule or regulation of the agency.
* §§17 and 18 of the Public Officers Law respectively address providing State officers and employees and officers and employees of political subdivisions of the State with legal representation andreimbursement for legal fees and expenses incurred in defense of a civil actionarising out an act or omission involving the performance of official duties. §19 of the Public Officers Law provides for the state to pay reasonable attorneys' fees and litigation expenses incurred by or on behalf of a State officer or employee in his or her defense of a criminal proceeding in a state or federal court arising out of any act which occurred while such officer or employee was acting within the scope of his or her public employment or duties upon his or her acquittal or upon the dismissal of the criminal charges against him or her or reasonable attorneys' fees incurred in connection.
The Thomas decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04280.htm
The Sagal-Cotler decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04281.htm