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Decision No. 12,584

Appeal of DODGE R. WATKINS from action of the Board of Education of the Wappingers Central School District denying reimbursement of legal fees incurred in defending disciplinary charges against him as superintendent of schools.

Decision No. 12,584

(September 19, 1991)

Whiteman, Osterman & Hanna, Esqs., attorneys for petitioner, Melvin H. Osterman, Esq., of counsel

Raymond G. Kruse, Esq., attorney for respondent

SOBOL, Commissioner--Petitioner appeals from action taken by respondent board denying reimbursement for legal fees incurred in the defense of disciplinary charges. The appeal must be denied.

This is the second appeal to the Commissioner evolving out of the same facts and circumstances, therefore they need not be repeated here. In such prior appeal, Appeal of Watkins, 29 Ed Dept Rep 479, I addressed certain issues relating to the scheduling of a hearing on disciplinary charges bought against the petitioner by the respondent. This "310 appeal concerns the interpretation of a particular paragraph in petitioner's employment contract as it pertains to the issue of indemnification of legal fees for the aforementioned disciplinary charges, in addition to other actions. The paragraph in question states:

19. The District agrees, as a further condition of this employment contract, that it shall defend, hold harmless, and indemnify the Superintendent from any and all demands, claims, suits, actions, and legal proceedings brought against the Superintendent in his individual capacity, or in his official capacity as agent and employee of the District, provided the incident arose while the Superintendent was acting within the scope of his employment and provided the Superintendent notifies the District within ten (10) days of any service upon him. This case shall apply equally to any legal actions brought against the Superintendent arising out of this or any previous contract. If in the good faith opinion of the Superintendent, a conflict exists as regards the defense to such claim between the legal position of the District and the legal position of the Superintendent, the Superintendent may engage counsel in which event the District shall indemnify the Superintendent for the cost of legal defense.

Based on the language of this paragraph, petitioner submitted to the respondent invoices for the months of January, February and March, in the amount of $54,939,51. The invoices allegedly represent the costs for legal services rendered on behalf of the petitioner for the following actions: defending disciplinary charges brought against the petitioner by the respondent; commencing a federal civil rights action; and prosecuting the first "310 appeal against the respondent (Appeal of Watkins, supra). By letter dated April 4, 1990, respondent informed the petitioner that it would not reimburse him for the legal expenses because it did not believe reimbursement was required by the language of the contract. Petitioner now appeals respondent's April 4, 1990 decision, but only seeks reimbursement for the January invoice in the amount of $6,340.28.

Petitioner contends that the disciplinary proceeding commenced against him by the respondent is a demand, claim, suit, action, or legal proceeding arising about of incidents while he was acting within the scope of his employment. Petitioner further alleges that he exercised good faith when he determined that a conflict existed between him and the respondent and retained private counsel. Petitioner concludes that the language of the employment contract requires respondent to indemnify the petitioner for the cost of such legal defense.

Respondent contends that the petition must be dismissed on several procedural grounds. First, respondent asserts that the Commissioner lacks jurisdiction in this matter because it is a contractual dispute between the district and its superintendent. The issue of the Commissioner's jurisdiction to interpret the provisions of an employment contract between a board of education and its superintendent was considered by the Appellate Division in Lewiston-Porter Central School District v. Sobol (154 AD2d 777 [1989], 546 NYS2d 227.) The Court stated that "the Commissioner's jurisdiction over proceedings to enforce school superintendents' contracts is well established" (id. at 778, citing Matter of Wilson v. Board of Education, 276 AD 482, 95 NYS2d 735.) Clearly then, the Commissioner has jurisdiction to consider the employment contract in this matter.

Respondent also contends that the petitioner failed to comply with the statutory notice and pleading requirements. Respondent fails to elaborate on this claim. It appears that the statutory requirements of notice and pleading were met, thus this argument is without merit.

Respondent also asserts that the petition is premature because there has been no decision on the merits in the disciplinary proceeding. The resolution of this appeal is not dependent upon a decision in the disciplinary action, and I find that the appeal is not premature.

Education Law "3811(1) sets forth the circumstances under which a board of education may be required to reimburse its superintendent for costs incurred in defending an action. It provides in pertinent part:

Whenever any superintendent...of any school district other than the city school district of the city of New York...shall defend any action or proceeding, other than...an action or proceeding brought against him by a school district, including proceedings before the commissioner of education, arising out of the exercise of his powers or the performance of his duties under this chapter, all his reasonable costs and expenses, as well as costs and damages adjudged against him, shall be a district charge...(emphasis added, Education Law "3811[1]).

The Legislature has therefore limited a school district's liability for the defense of actions to those that are commenced by an entity other than the school district itself. It would be contrary to the legislative intent of Education Law "3811 to require a school district to provide a defense where the interest of the employee and the board of education are diametrically opposed (Matter of Casey v. Tieman, 110 AD2d 167, 175 [1985], 493 NYS2d 572, app. den. 67 NY2d 601) 499 NYS2d 1026.

To the extent that petitioner's contract may be interpreted to require indemnification for disciplinary charges brought against him by the board of education, I find such an agreement to be void as against the public policy expressed in Education Law "3811(a) and therefore unenforceable. To hold otherwise would be to sanction the expenditure of public funds for the defense of a public officer or employee for misconduct committed in the exercise of his or her official duties. Such indemnification would service as a deterrent to the bringing of disciplinary charges against the public officer or employee, which is contrary to the public interest. By the clear and unequivocal language of Education Law "3811(1), the Legislature has recognized that a school district ought not to incur the costs of legal defense of an action or proceeding brought by the school district against its own employee. I conclude that a board of education may not enter a contractual agreement for legal defense and indemnification in contravention of this statute. I therefore reject petitioners contention that paragraph 19 of his employment contract applies to the defense of an action or proceeding brought by the school district.

With respect to petitioner's argument that he should be reimbursed for expenses incurred in prosecuting the first Education Law "310 appeal, I note that there is no authority to order such relief against the respondent. A school superintendent is not entitled to reimbursement for legal fees incurred in prosecuting an administrative proceeding initiated by him or her against the district (Matter of Kaplan, 19 Ed Dept Rep 46; Matter of Spring, 14 id. 319). Further, it appears that some of petitioner's claims relate to legal fees incurred in prosecuting his federal civil rights complaint against the respondent. As part of petitioner's relief in the federal action, he may be entitled to reimbursement of his legal fees, however, that issue is more appropriately addressed by the federal court when it considers the merits of petitioner's federal civil rights claims.

THE APPEAL IS DISMISSED.

END OF FILE