Home -> Law Blog Directory -> Labor & Employment Law Blogs -> New York Public Personnel Law

Labor & Employment Law

: New York Public Personnel Law

Former school board member appeals board?s rescinding its earlier motion to defend and indemnify him in a lawsuit in which he is a defendant

Former school board member appeals board?s rescinding its earlier motion to defend and indemnify him in a lawsuit in which he is a defendant
Appeal of Louis M. Palmeri, individually and on behalf of David S. Schaubert, from action of the Board of Education of the Lewiston-Porter Central School District, Robert Weller, Board President, and Edward Lilly, Board Member, regarding defense and indemnification. Decisions of the Commissioner of Education, Decision No. 15,859,

Louis M. Palmeri, a former member of the Board of Education of the Lewiston-Porter Central School District appealed the boards rescinding earlier approved motions to defend and indemnify himself and David S. Schaubert, also a former board member, with respect to certain legal actions brought against them.

This case started when Edward Lilly, who was not at that time a board member, commenced an action for libel and slander Schaubert, and others. On March 18, 2008 the then sitting board voted to provide legal defense and indemnification to Palmeri and Schaubert.*

Twice thereafter resolutions were placed before the board to revoke the defense and indemnification granted on March 18, 2008, but such motions were defeated. A school board election held on May 2008 On July 1, 2008, the school board met for both a reorganization meeting and a business meeting. At the business meeting, the newly constituted board passed resolutions revoking prior board resolutions for defense and indemnification of both Palmeri and Schaubert in the libel and slander actions.

Palmeri appealed and asked the Commissioner to annul the board resolutions of July 1, 2008, thereby restoring the defense and indemnity resolutions voted on March 18, 2008.

Noting that on September 2, 2008, the Appellate Division, Fourth Department, dismissed the libel and slander case brought by Lilly because he had failed to perfect the appeal in a timely manner, the Commissioner dismissed Palmeri?s appeal as moot.

Further, said the Commissioner, to the extent that Palmeri seeks relief on behalf of Schaubert, the appeal must be dismissed as a petitioner may not assert claims that clearly belong only to others, in this instance Schaubert.

The Commissioner also commented that ?even though the board voted not to defend and indemnify [Palmeri] and Schaubert, the board?s insurance carrier undertook the defense of both, and neither [Palmeri] nor Schaubert was obligated to pay for his own defense.

* Public Officers Law §18(2) provides for the ?Defense and indemnification of officers and employees of public entities.? The term "public entity" includes ?(ii) a school district, board of cooperative educational services, or any other governmental entity or combination or association of governmental entities operating a public school, college, community college or university?.?

Education Law §3811(1) provides for the defense and indemnification of a member of a board of education, a school officer, the district's superintendent and other employees of the district in the event such an individual is named as a defendant in a lawsuit, other than in a criminal action, involving the performance, or an omission, of an official duty by the district.

In the Appeal of Rheta Percy and Janice Ross, Commissioners Decision 12,619, the Commissioner of Education observed that an individual ?may have rights under both Education Law §3811, as a primary source, and Public Officers Law §18, as a secondary source.?

Full post as published by New York Public Personnel Law on March 08, 2010 (boomark / email).