Re-posted from NYC Rubber Room Reporter
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?
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 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.
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.