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Tuesday, October 27, 2009

School district not required to provide for defense, nor provide for indemnification, in lawsuit it brought against former school board member

Matter of Barkan v Roslyn Union Free School Dist., 2009 NY Slip Op 06541, decided on September 15, 2009, Appellate Division, Second Department

Michael F. Barkan initiated two lawsuits; one named the Roslyn Union Free School District as the defendant, the other named New York Schools Insurance Reciprocal as the defendant.

Barkan’s lawsuit against the school district challenged its decision to reject his request for his defense and indemnification in an action entitled Roslyn Union Free School District v Barkan, [Supreme Court, Nassau County, Index No. 05-5946].*

In Barkan’s lawsuit against the school district, the principal issue concerned whether a board of education that has essentially adopted the provisions of Public Officers Law §18** is obligated to provide a defense and indemnification to board members and employees against whom the school district, on behalf of the board of education, has commenced a civil action.***

The Appellate Division ruled that “if the board of education or the school district, on its behalf, commences a civil action against one of its employees, neither the duty to defend nor the duty to indemnify arises” and thus the board’s determination that that Barkan was not entitled to a defense in the underlying action pending in Supreme Court was neither irrational, nor arbitrary and capricious.****

It should be noted that Education Law §3811(1) provides for the defense and indemnification of a member of a board of education, a school officer, the district's superintendent and other employees of the district in the event such an individual is named as a defendant in a lawsuit, other than in a criminal action, involving the performance, or an omission, of an official duty by the district.

In the Appeal of Rheta Percy and Janice Ross, Commissioner's Decision 12,619, the Commissioner of Education observed that an individual “may have rights under both Education Law §3811, as a primary source, and Public Officers Law §18, as a secondary source.”

* Roslyn sued Barkan and other school board members alleging he and the other named Board members failed to properly monitor the School District's finances whereby they failed to detect the theft of millions of dollars by former School District employees during a six-year period from 1998 to 2004.

** In many political subdivisions of the State the jurisdiction provides for the defense and indemnification of its officers and employees being sued in connection with the performance of their official duties pursuant to Section 18 of the Public Officers Law. Public Officers Law Section 17 applies to State officers and employees.

*** The school district’s rule addressing the "Defense and Indemnification of School District Employees" provided, in relevant part, that “2. Defense: (a) … the Board shall provide for the defense of the employee [defined, in part, as a member of the Board] in any civil action . . . 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 public employment or duties. This duty to provide a defense shall not arise where such civil action or proceeding is brought by or on behalf of the Board [emphasis supplied]….”

**** See, also, Barkan v New York Schools Insurance Reciprocal, 2009 NY Slip Op 06494, also decided on September 15, 2009 by the Appellate Division, Second Department. This action involved Barkan’s claim that New York Schools Insurance Reciprocal must defend and indemnify him in connection with the litigation brought against him and the other plaintiffs in Roslyn Union Free School District v Barkan [Supreme Court, Nassau County, Index No. 05-5946].” This decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2009/2009_06494.htm

The Appellate Division's decision in Barkan v Roslyn Union Free School Dist is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2009/2009_06541.htm

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

http://lawprofessors.typepad.com/adjunctprofs/2009/10/school-district-not-required-to-provide-for-defense-nor-provide-for-indemnification-in-lawsuit-it-brought-against-former-sc.html

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