7.8 Step 9: Know What To Expect If The Board Or Its Members Are Sued

• Jurisdiction: New York

STEP 9: KNOW WHAT TO EXPECT IF THE BOARD OR ITS MEMBERS ARE SUED

Because they are not “final determinations,” the advice given by an ethics board is not subject to judicial review and reversal.⁴¹¹ As a result, there are few reported cases involving challenges to the decisions of local municipal ethics boards. But when an ethics board engages in the quasi judicial function of determining whether an ethics violation has occurred, or imposes a fine or other penalty, its decisions will be subject to judicial review in a proceeding under Article 78 of the New York Civil Procedure Law and Rules (CPLR).⁴¹²

In an Article 78 proceeding, the petitioner will have the burden of proving that the board’s determination was illegal, arbitrary, or capricious; that the board abused its discretion; or that the decision was unsupported by substantial evidence.⁴¹³

Lawsuits brought against the board will normally be handled by the municipal attorney, or other counsel retained by the municipality, at no cost to the individual board members. But what if the individual board members are sued by an aggrieved party? The individual members of a local municipal ethics board are entitled to a qualified immunity from individual liability where they exercised discretion within the scope of their official duties, and where they have not violated a plaintiff’s constitutional rights.⁴¹⁴

A municipality may, by local law, provide for the defense and indemnification of its officers and employees in civil claims arising out of their acts or omissions while acting within the scope of their official duties, except where the claim is brought by or on behalf of the municipality. The indemnification will not apply to judgments based on intentional wrong doing or recklessness, or to awards of punitive damages.⁴¹⁵ Where the municipality provides an officer or employee with defense and indemnification, any settlement of the claim is subject to approval by the municipality.⁴¹⁶

The municipality may purchase insurance to fund its obligations under the indemnity⁴¹⁷ or it may purchase liability insurance to protect its officers and employees from liability arising out of the performance their official duties even without a local law providing for the defense and indemnification of officers and employees by the municipality.⁴¹⁸ Board members should inquire whether their municipality has adopted a local law providing for the defense and indemnification of its officers and employees, and whether the...