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HENNESSY v. ROBINSON

November 18, 1997

JOHN A. HENNESSY, III, as Administrator of the Goods, Chattels, and Credits of WILLIAM P. HENNESSY, Deceased, Plaintiff,
v.
ROB ROBINSON, TERRY GILBERT, PETER SERVALLO, MARTY LAGASSE, ROLAND MORGAN, and SHAWN MALONE, each Individually, and as a Deputy Sheriff/Correctional Officer of the County of Oneida, New York; DANIEL G. MIDDAUGH, Individually and as Sheriff of the County of Oneida, New York; JOHN DOE, a fictitious name intended to represent the names of several employees of the Sheriff's Department of Oneida County, New York, and/or the County of Oneida, New York, whose identities are as yet unknown; and THE COUNTY OF ONEIDA, NEW YORK, Defendants.



The opinion of the court was delivered by: HURD

 I. INTRODUCTION

 The attorney for the defendants Rob Robinson ("Robinson") and Peter Servallo ("Servallo") has moved pursuant to New York Public Officers Law, § 18(3)(c) for an order setting reasonable attorney's fees to be paid by the defendant County of Oneida, New York ("County"). The County has opposed the motion. Oral argument was heard on October 11, 1997, in Utica, New York. Decision was reserved.

 II.FACTS

 In 1981, New York State enacted Public Officers Law § 18 ("§ 18"), providing in part that its provisions "shall apply to any public entity whose governing body has agreed by the adoption of . . . resolution . . . to confer the benefits of this section. upon its employees." N.Y Public Officers Law § 18(2)(l) (McKinney 1988). If § 18 is adopted by a local government and the following events occur: (1) the local government and one or more of its employees are sued; (2) the chief legal officer of the local government declares a conflict of interest between the local government and an employee; (3) the employee elects to be represented by his own attorney; and (4) a dispute arises over the amount of attorney's fees, then the issue of reasonable attorney's fees is resolved by the court upon motion. § 18 (a)(b)(c).

 On April 30, 1986, the County Legislature adopted Resolution No 102. It was passed in response to a request by the County Executive for self insurance authority because the County was unable to secure affordable insurance. The Resolution was entitled "Resolution for Self Insurance Program and Indemnification of Members of the Board of County Legislature, the County's Officers and Employees." This Resolution provides for indemnification against liability for county employees; declares the County to be self-insured; authorizes the County Executive in conjunction with the County Attorney and the Commissioner of Finance to set up a self-insurance program; and authorizes the Board of Acquisition and Contract to settle claims up to $ 10,000. *fn1"

 Pursuant to New York County Law 501(1) and Resolution 102, the County Attorney set up a self insurance program wherein he would defend and indemnify those employees who are sued for actions within the scope of their employment. The defense would be undertaken by the County Attorney's office, or by retaining private attorneys. If the County Attorney declared there was a conflict of interest between the County and an employee/defendant, he would either retain a private attorney for the employee/defendant, or allow the employee/defendant to retain his own private attorney. However, the County Attorney would only agree to pay a retained attorney $ 65.00 per hour. The portion of the employee/defendant's own private attorney's fee in excess of $ 65.00 per hour would be the employee/defendant's personal responsibility.

 The complaint in this action was filed on September 13, 1996. It alleges that decedent William P. Hennessy's civil rights were violated, together with state law causes of action for wrongful death, conscious pain and suffering, and prima facie tort. The acts allegedly occurred while he was incarcerated at the Oneida County Correctional Facility. The County Attorney initially retained the private law firm of McLane and Smith to represent all defendants. That firm filed and served an answer on behalf of all of the defendants on November 12, 1996. Thereafter, the County Attorney declared a conflict of interest between the County and the employee/defendants, including defendants Robinson and Servallo. The County Attorney retained private attorneys to represent the other employee/defendants, and substitution of attorneys to replace McLane and Smith were duly filed. However, Robinson and Servallo, on their own, elected to retain the private law firm of Kenneth P. Ray, P.C. ("Ray"). By Orders dated January 24, 1997, and February 7, 1997, Ray was duly substituted for McLane and Smith to represent Robinson and Servallo. Although all of the other attorneys agreed to represent the other employee/defendants at the rate of $ 65.00 per hour set by the County Attorney, Ray refused to accept such a fee. He demanded that he be paid a fee of $ 125.00 to $ 225.00 per hour by the County, pursuant to his retainer agreements with Robinson and Servallo. The County Attorney refused. This motion followed.

 III. DISCUSSION

 A. Introduction

 The threshold issue is whether the County is bound by the provisions of § 18. *fn2" If so, Ray is entitled to a reasonable attorney's fee to be determined by this court. See N.Y. Public Officers Law § 18(3)(c) (McKinney 1988). However, if the County is not bound by the provisions of § 18, then Ray and his clients are free to accept or reject the terms of the County Attorney.

 Ray contends that principles of New York statutory interpretation, the local legislative proceedings, and the history of Resolution 102, demonstrate that the County Legislature intended to confer the benefits of § 18 upon its employees. Despite Ray's contentions, before the intent of the County Legislature need be addressed, the requirements and purpose of § 18 must be examined.

 B. Public Officers Law § 18

 Prior to the enactment of § 18, "a confusing patchwork of defense and indemnification provisions existed that applied to various public officers and employees . . . sued as a result of acts or omissions within the scope of their public employment." (Memorandum of the Law Revision Commission, McKinney's Sessions Laws of 1981, pp. 2314-15). The intention of § 18 was to avoid a '"piecemeal approach to enacting defense and indemnification protection for various municipal employees . . . ."' Coker v. City of Schenectady, 200 A.D.2d 250, 252, 613 N.Y.S.2d 746 (3rd Dep't 1994)(quoting McKinney's Sessions Laws of 1981, p. 2317). In recommending passage of § 18, the Law Revision Commission believed "that this bill will encourage municipalities and other public entities to elect coverage under the provisions of the bill for their employees." (Mckinney's ...


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