The complaint alleges that on July 16, 1994, the Defendants Prue and Burke arrested the Plaintiff outside of Plaintiff's home in Syracuse, New York. The Plaintiff further alleges that the Defendants, while driving the Plaintiff to jail, stopped in a parking lot and beat the Plaintiff with a nightstick while the Plaintiff's hands were handcuffed.
The Plaintiff's § 1983 claims against the individual Defendants are premised on these allegations. In addition, Plaintiff brings a Monell claim against the City for failing to properly train and supervise Defendant Prue.
The City initially undertook the individual defense of both Defendants Burke and the Appellant. Upon the City's determination that there was a potential conflict of interest between the City and the Appellant, however, the City advised the Appellant that he had to be represented by separate counsel. The City agreed to reimburse the Appellant for his reasonable attorney's fees provided he chose one of three attorneys from a list provided to him by the City. Prue rejected the attorneys on the list, and retained the firm of DePerno, Khanzadian, McGrath & Lalonde ("DePerno law firm") The DePerno law firm notified the City that it had been retained by the Appellant and that it was Appellant's position that he had an absolute right to choose any attorney at the City's expense. In a pretrial conference with Magistrate Judge DiBianco, counsel for the appellant raised this disputed issue of who would bear the expense of the Appellant's representation. Judge DiBianco requested briefing on the matter from the parties.
The City made two arguments in its brief. First the City argues that it was not required to pay the Appellant's legal fees if Appellant refused to select one of the attorneys from the list provided by the City. Second, the City argued that the DePerno firm should be further barred from representing the Appellant because of a conflict of interest created by its involvement in other litigation with the City. In response, the Appellant argued that he is entitled to the attorney of his choice, and that the City is legally required to reimburse him for his attorney's fees.
In an Order dated September 19, 1996, Judge DiBianco found that the Appellant is entitled to the attorney of his choice, however, the City is entitled to limit the choice of attorneys for which they will reimburse the Appellant. Judge DiBianco further found that there was no ethical conflict of interest apparent in the representation of the Appellant by the DePerno law firm. Judge DiBianco ordered that within thirty days the Appellant must complete one of the following three options: (1) have the DePerno law firm file a notice of appearance on the Appellant's behalf, and pay his own attorney's fees, (2) select one of the attorneys from the list provided by the City, and have the City pay his legal expenses, or (3) file a notice of appearance declaring that he will proceed pro se.
Appellant appeals this Order, arguing that Judge DiBianco's findings were clearly erroneous in that the City is required by state law to reimburse the Appellant for representation by the attorney of his choosing.
Appellant argues that the City has adopted New York Public Officers Law § 18, and that § 18 requires the City to reimburse the Appellant for counsel of his choosing in the present action. Appellant further argues that even though the City's reimbursement law, Local Law No. 11, authorizes the City to limit the attorney choices of a public officer in the Appellant's position, the City was not authorized to amend Public Law § 18 in this manner. The Appellant also argues that Judge DiBianco erred in interpreting General Municipal Law § 50-j to authorize the City's actions in limiting Appellant's choice of counsel. Finally, the Appellant argues that the act of limiting his choices of outside representation by the City in and of itself creates an ethical conflict of interest. Appellant's arguments essentially restate his original arguments before the Magistrate. Pursuant to Fed. R. Civ. P. 72(a), the Court will set aside Judge DiBianco's Order only upon a finding that it is "clearly erroneous or contrary to law."
1. Public Officers Law § 18
Public Officers Law § 18(3) provides that a "public entity shall provide for the defense of an employee in any civil action or proceeding, state or federal, arising out of any alleged act or omission which occurred . . . while the employee was acting within the scope of his public employment or duties." N.Y. Pub. Off. Law § 18(3)(c) (McKinney 1988). It further provides that "the employee shall be entitled to be represented by private counsel of his choice in any civil action or proceeding whenever the chief legal officer . . . determines that a conflict of interest exists . . . ." § 18(3)(b). Section 18 by its express terms, however, only applies to those municipalities "whose governing body has agreed by the adoption of local law, by-law, 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. § 18(2)(a).
Appellant argues that the City adopted § 18 of the Public Officers Law when it enacted Local Law No. 11 of 1982, because it utilizes similar language to that of § 18. Additionally, the Appellant argues that the City's Corporation Counsel references § 18 in its various letters to the Appellant. Judge DiBianco found that, although Local Law 11 was similar to § 18 in many ways, it left out the provision in § 18(3)(b) that provides a municipal officer his choice of counsel. Rather, Local Law 11, in relevant part, provides that "the employee shall be entitled to be represented by private counsel selected by the board of estimate of the city [sic] of Syracuse." Syracuse, N.Y., Local Law § 12-162. This Court finds, as did Judge DiBianco, that the City did not adopt § 18 of the Public Officers Law because the City Common Council did not expressly adopt it by local law, as required by § 18(2)(b). Thus § 18 does not create any rights in favor of the Appellant. Instead, the City's reimbursement responsibilities for its municipal employees spring from Local Law 11, which was duly passed by the City's legislative body. Thus, all of Appellant's arguments premised upon the authority of§ 18 lack merit.
2. General Municipal Law 50-j
New York General Municipal Law § 50-j governs the liability of municipal police officers for negligence in the performance of duty. In relevant part, it provides:
every city, county, town, village, authority or agency shall be liable for, and shall assume the liability to the extent that it shall save harmless, any duly appointed police officer . . . for any negligent act or tort, provided such police officer . . . was acting in the performance of his duties and within the scope of his employment.
N.Y. Gen. Mon. Law. § 50-j(1) (McKinney 1986). Section 50-j further provides: "upon discretionary adoption of a local law, ordinance, resolution, rule or regulation, any city, county, town, village, authority, or agency shall provide for the defense of any civil action or proceeding brought against a duly appointed police officer." § 50-j(6)(a) (McKinney Supp. 1997).
Appellant argues that Judge DiBianco erred in concluding that General Municipal Law § 50-j does not require a municipality to allow a municipal police officer to select the counsel of his choosing when a conflict of interest is present. It is true that § 50-j generally requires a municipality to indemnify its police officers for attorney's fees incurred in defending negligence and tort actions which arise out of their official acts. See N.Y. Att. Gen. Op. 94-23. Section 50-j cannot be read, however, to require a municipality to allow the defendant police officer to select the counsel of his choosing, even if there is a potential conflict of interest. Suffolk County Patrolmen's Benevolent Ass'n, Inc. v. Suffolk County, 595 F. Supp. 1471, 1479-81 (E.D.N.Y.), aff'd, 751 F.2d 550 (2d Cir. 1984) (where conflict of interest arose in the defense of a county police officer, the court found that neither General Municipal Law 50-j, nor New York common law required the county to allow defendant police officers to select their own counsel).
Judge DiBianco's finding that the Appellant was not entitled to complete discretion as to choosing his counsel is, therefore, amply supported by state law and relevant case law.
3. Conflict of Interest
As a final matter, Appellant argues that the Corporation Counsel's act of limiting the Appellant to three choices for separate counsel creates an ethical conflict of interest in and of itself. The Appellant implies that the act by the City of selecting the list of three attorneys creates the "appearance" that some quid pro quo exists between the attorneys selected and the City. The Court finds that this argument lacks merit. See N.Y.S. Urban Corp. v. VSL Corp., 738 F.2d 61, 66 (2d Cir. 1984) ("The participation of an insurer in the selection process does not automatically taint the independence of chosen counsel." Id.) Further, Judge DiBianco's Order mitigated any possibility of a conflict of interest by allowing the Appellant to make specific objections to any of the firms on the City's list.
After reviewing the parties' submissions, Magistrate Judge DiBianco's Order, the applicable law, and the entire record, the Court finds that Judge DiBianco's September 13, 1996 Order is neither clearly erroneous, nor contrary to law. As such, it is hereby
ORDERED that Magistrate Judge DiBianco's September 13, 1996 Order is AFFIRMED, and this Appeal is DISMISSED.
IT IS SO ORDERED.
Date: January 22, 1997
Syracuse, New York
Frederick J. Scullin, Jr.
United States District Judge