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School district directed to provide for the defense and indemnification of a teacher being sued in a civil action by another teacher in the district

School district directed to provide for the defense and indemnification of a teacher being sued in a civil action by another teacher in the district
Matter of Cotter v Board of Educ. of Garden City Union Free School Dist., 2009 NY Slip Op 05336, decided on June 23, 2009, Appellate Division, Second Department

Two sections in the Education Law concern providing for the defense and indemnification of school officials and employees in the event they are named as defendants in a civil action alleging acts or omissions that occurred in the performance of their official duties.

Education Law §3023, in relevant part, provides that ? it shall be the duty of each board of education, trustee or trustees, in any school district having a population of less than one million, and each board of cooperative educational services established pursuant to section nineteen hundred fifty of this chapter, to save harmless and protect all teachers, practice or cadet teachers, authorized participants in a school volunteer program, and members of supervisory and administrative staff or employees from financial loss arising out of any claim, demand, suit or judgment by reason of alleged negligence or other act resulting in accidental bodily injury to any person, or accidental damage to the property of any person within or without the school building, provided such teacher, practice or cadet teacher, authorized participant in a school volunteer program, or member of the supervisory or administrative staff or employee at the time of the accident or injury was acting in the discharge of his duties within the scope of his employment or authorized volunteer duties and/or under the direction of said board of education, trustee, trustees or board of cooperative educational services?.

Education Law §3811, in relevant part, provides that: Whenever any superintendent, principal, member of the teaching or supervisory staff, member of a committee on special education or subcommittee thereof, surrogate parent as defined in the regulations of the commissioner of education, or any trustee or member of the board of education of a school district or non-instructional employee of any school district other than the city school district of the city of New York or any board of cooperative educational services shall defend any action or proceeding, other than a criminal prosecution or an action or proceeding brought against him by a school district or board of cooperative educational services hereafter brought against him, including proceedings before the commissioner of education, arising out of the exercise of his powers or the performance of his duties under this chapter, all his reasonable costs and expenses, as well as all costs and damages adjudged against him, shall be a district charge and shall be levied by tax upon the district or shall constitute an administrative charge upon the board of cooperative educational services?.

In the words of the Appellate Division, §3811 was enacted ?to protect teachers from a broader array of claims? than those encompassed by §3023.*

This distinction proved critical in resolving Cotter v Garden City Union Free School District.

James Cotter, a Garden City UFSD teacher designated "Teacher in Charge" of the Regents examination-grading process, became involved in a physical altercation with a fellow teacher, Philip McCarthy. Cotter claimed that when he directed McCarthy to ?sit down and resume grading examinations,? McCarthy threw water at him, which resulted in the altercation.

McCarthy commenced a civil action against the Cotter to recover damages for assault. Cotter asked Garden City to provide for his defense and to indemnify him should he be held liable for damages to McCarthy, citing Education Law §§3023 and 3811. Garden City declined to do so, contending that the action brought by McCarthy against Cotter did not arise out of "the exercise of [Cotter?s] powers or the performance of his duties." Cotter sued in an effort to obtain a court order directing the school district to provide for his defense and indemnify him should he be held liable for damages.

The Supreme Court agreed with the school district and denied Cotter?s petition and dismissed the proceeding. The Appellate Division reversed the lower court?s ruling and directed Garden City ?to defend and indemnify? Cotter in the civil action brought by McCarthy.

In the words of the Appellate Division, ?The Legislature created Education Law §3811 to protect teachers from a broader array of claims than those encompassed by Education Law §3023, citing Casey v Tieman, 110 AD2d 167. Examples of such claims, said the court, include, but are not limited to, "educational malpractice actions and libel actions directly related to the educator's performance of his [or her] job."

Considering the thrust of §3811, the Appellate Division ruled that it was unreasonable for Garden City to reject Cotter?s request that it provide his defense and indemnification as the altercation occurred on school grounds, while Cotter and McCarthy were on duty grading Regents examinations and thus was not "wholly personal."

* Sections 17 and 18 of the Public Officers Law, respectively, requires that the appropriate employer provide for the defense and indemnification of State and municipal officers and employees being sued for acts or omissions involving the performance of their official duties.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_05336.htm

Full post as published by New York Public Personnel Law on June 30, 2009 (boomark / email).