Opinion 98 - 17

This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

PUBLIC HOUSING AUTHORITIES -- Officers and Employees (defense and indemnification by municipality)

PUBLIC OFFICERS AND EMPLOYEES -- Legal Expenses (defense and indemnification by municipality of employees of a public housing authority)

PUBLIC OFFICERS LAW, §18; PUBLIC HOUSING LAW, §30: A town board, by local law or resolution, may agree to confer the benefits of section 18 upon the employees of the housing authority and to be held liable for the costs incurred under section 18.

You ask whether a town may confer the benefits of Public Officers Law, §18 upon employees of a town housing authority.

Public Officers Law, §18 generally authorizes a "public entity" to defend and indemnify public "employees" in any civil action arising out of an act or omission which occurred while the "employee" was acting within the scope of his or her responsibilities.(1) The provisions of section 18 apply to any "public entity":

(a) whose governing board has agreed by the adoption of local law, bylaw, resolution, rule or regulation (i) to confer the benefits of this section upon its employees, and (ii) to be held liable for the costs incurred under these provisions; or

(b) where the governing body of a municipality, for whose benefit the public entity has been established, has agreed by the adoption of local law or resolution (i) to confer the benefits of this section upon the employees of such public entity, and (ii) to be held liable for the costs incurred under these provisions. [Emphasis added]

The term "public entity" is defined to include a town (Public Officers Law, §18[1][a][i]) and a public authority, commission, agency, public benefit corporation or any other separate corporate instrumentality or unit of government (Public Officers Law, §18[1][a][iv],[v]).(2)

As to whether a town may agree to confer the benefits of section 18 upon employees of a town housing authority, we note that the enabling act of the housing authority in this instance contains "boilerplate" language providing that the authority is "created and established" for the town (Public Housing Law, §496; see gen, Public Housing Law, article 13). Further, the town has other close relationships with the housing authority. For example, the town board appoints the appointive members of the housing authority, the town may make loans or give subsidies to the housing authority and guarantee loans of the housing authority, and the town may appropriate amounts to pay the administrative expenses of the housing authority (Public Housing Law, §§30[2], 93, 94, 95, 96). Based on this relationship between the town and the housing authority, it is our opinion that the town is a municipality for whose benefit a town housing authority is established for purposes of Public Officers Law, §18(2)(b).

Accordingly, it is our opinion that a town board, by local law or resolution, may agree to confer the benefits of section 18 upon the employees of the housing authority and to be held liable for the costs incurred under section 18.(3)

August 27, 1998
James E. Maher, Esq., Town Attorney
Town of Harrietstown

1. For purposes of section 18, the term "employee" is defined generally to include any commissioner, member of a public board or commission, trustee, director, officer, employee, certain volunteers or any other person having a position by election, appointment or employment in the service of the public entity, whether or not compensated (Public Officers Law, §18[1][b]).

2. A municipal housing authority is a "public authority" and a "public benefit corporation" (see General Construction Law, §§65[a], 66[4]; Bass v City of New York, 38 AD2d 407, 330 NYS2d 569 affd 32 NY2d 894, 346 NYS2d 814; Valente v NYCHA, 201 Misc 24, 109 NYS2d 883; Ciulla v State, 191 Misc 528, 77 NYS2d 545). Therefore, since a municipal housing authority falls within the definition of "public entity", the governing board of a housing authority may agree to confer the benefits of section 18 upon its employees and to be held liable for the costs incurred under the provisions of section 18 (Public Officers Law, §18[2][a]; 1992 Opns Atty Gen [Inf] No. 92-19). For purposes of this opinion, however, we assume the housing authority has not acted under Public Officers Law, §18.

3. See Corning v Village of Laurel Hollow, 48 NY2d 348, 422 NYS2d 932; Schulz v Doetsch, 217 AD2d 861, 629 NYS2d 841, concerning the propriety of reimbursing officers and employees for expenses incurred before coverage is authorized pursuant to Public Officers Law, §18.