19. Reimbursement of defense costs incurred by or on behalf of state employees. 1. (a) As used in this section, unless the context otherwise requires, the term "employee" shall mean any person holding a position by election, appointment or employment in the service of the state, whether or not compensated, or a volunteer expressly authorized to participate in a state-sponsored volunteer program, but shall not include an independent contractor. The term employee shall include a former employee, his estate or judicially appointed personal representative and persons who assist the education department or the department of health as consultants or expert witnesses in the investigation or prosecution of alleged professional misconduct, licensure matters, restoration proceedings or criminal prosecutions for unauthorized practice pursuant to title eight of the education law or title II-A of article two of the public health law.
(b) For the purposes of this section, the term "employee" shall include members, officers and other persons in the employment of the New York state energy research and development authority.
(c) For the purposes of this section, the term "employee" shall include members of the state patient qualification review board appointed by the commissioner of health pursuant to article thirty-three-A of the public health law.
(d) For the purposes of this section, the term "employee" shall include directors, officers and employees of the facilities development corporation.
(e) For the purposes of this section, the term "employee" shall include directors, officers and employees of the environmental facilities corporation.
(f) For purposes of this section, the term "employee" shall include directors, officers and employees of the dormitory authority;
(g) For the purposes of this section only, the term "employee" shall include any member, director, officer or employee of a soil and water conservation district created pursuant to section five of the soil and water conservation districts law who is working on a project which receives funding from the state and has received approval by the state soil and water conservation committee.
(h) For the purposes of this section and consistent with the provisions of section 13 of a chapter of the laws of 1997, amending the public authorities law, the public health law, the public officers law, chapter 41 of the laws of 1997 relating to providing a retirement incentive for certain public employees, and the civil service law, relating to the creation of the Roswell Park Cancer Institute corporation and providing for the rights, powers, duties and jurisdiction of such corporation, the term "employee" shall include directors, officers and employees of the Roswell Park Cancer Institute corporation.
(i) For the purposes of this section, the term "employee" shall include directors, officers, and employees of the Governor Nelson A. Rockefeller empire state plaza performing arts center corporation.
(j) For purposes of this section, the term "employee" shall include directors, officers and employees of the thruway authority, and the directors, officers and employees of the canal corporation. In those cases where the definition of the term "employee" provided in this paragraph is applicable, the term "state", as utilized in subdivisions two, three, and four of this section, shall mean the thruway authority when the employee is a director, officer, or employee of the thruway authority, or the canal corporation, when the employee is a director, officer, or employee of the canal corporation.
2. (a) Upon compliance by the employee with the provisions of subdivision three of this section, and subject to the conditions set forth in paragraph (b) of this subdivision, 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 or 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 public employment or duties upon his acquittal or upon the dismissal of the criminal charges against him 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 public employment or duties unless such appearance occurs in the normal course of the public employment or duties of such employee.
(b) Upon the application for reimbursement for reasonable attorneys' fees or litigation expenses or both made by or on behalf of an employee as provided in subdivision three of this section, 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. On or before January fifteenth the comptroller, in consultation with the department of law and other agencies as may be appropriate, shall submit to the governor and the legislature an annual accounting of judgments, settlements, fees, and litigation expenses paid pursuant to this section during the preceding and current fiscal years. Such accounting shall include, but not be limited to the number, type and amount of claims so paid, as well as an estimate of claims to be paid during the remainder of the current fiscal year and during the following fiscal year. 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.
3. Reimbursement of reasonable attorneys' fees or litigation expenses or both by the state as prescribed by this section shall be conditioned upon (a) 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 ten days after he is arraigned upon such instrument or, in the case of a grand jury appearance, written documentation of evidence of such appearance and (b) 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.
4. Except as otherwise specifically provided in this section, the provisions of this section shall not be construed in any way to impair, alter, limit, modify, abrogate or restrict any immunity available to or conferred upon any unit, entity, officer or employee of the state or any other level of government, or any right to defense and/or indemnification provided for any governmental officer or employee by, in accordance with, or by reason of, any other provisions of state or federal statutory or common law.
5. If any provision of this section or the application thereof to any person or circumstance be held unconstitutional or invalid in whole or in part by any court of competent jurisdiction, such holding of unconstitutionality or invalidity shall in no way affect or impair any other provision of this section or the application of any such provision to any other person or circumstances.
Last modified: February 3, 2019