Decision No. 13,110

(February 22, 1994)

Whiteman, Osterman & Hanna, Esqs., attorneys for respondent,

Beth A. Bourassa, Esq., of counsel

SOBOL, Commissioner.--Petitioner challenges a resolution adopted by respondent board of education, authorizing the use of district funds to pay for legal services in connection with litigation. He seeks an order annulling that resolution and denying the issuance of a good faith certificate pursuant to Education Law '3811. The appeal must be dismissed.

On March 12, 1993, an action was commenced in Supreme Court, Ulster County against the Board of Education of the Saugerties Central School District (respondent) and Ernest Fick, a member of respondent. On March 29, 1993, respondent adopted a resolution pursuant to Education Law '3811 authorizing the district's insurance carrier to designate an attorney to handle the defense of the action (the "resolution"). The resolution further provided that any costs incurred, together with damages that may be awarded, would be charged against the district.

Section 3811(1) provides in part that individual members of boards of education against whom legal proceedings arising out of the performance of their duties are brought are entitled to have the reasonable costs and expenses for the defense of such proceedings paid by the school district. This entitlement is contingent upon the school board member notifying the board of education in writing of the commencement of the proceeding within five days after service of process upon the board member. To secure reimbursement, either the court or the Commissioner of Education must certify that the board member acted in good faith in the exercise of his or her powers or the performance of his or her duties. The statute also provides that the board of education may designate counsel within ten days of receipt of the notice from the board member to defend the school board member. If the board fails to designate counsel, the board member may retain his or her own counsel.

Petitioner contends that the resolution is improper because respondent and Mr. Fick failed to formally notify the board in writing of the commencement of the action. He also claims and that the resolution was not adopted in a timely manner. Such contentions are without merit.

First, petitioner's argument that respondent's resolution is improper because it did not send a written notice to itself and did not adopt the resolution within 10 days after receipt of its own notice is specious. A plain reading of '3811 clearly demonstrates that the notice and counsel designation requirements contemplate instances when a board member is sued alone. Those requirements are not applicable when the board itself is a defendant, and has notice of the lawsuit by virtue of service of the complaint upon it. Moreover, the first sentence of Education Law '3811(1) specifically provides that the cost and damages associated with an action against the board are district charges, levied by tax upon the district. There is no requirement that the board notify itself of the pending action or that a resolution authorizing payment be adopted within a specific timeframe.

While Education Law '3811(1)(a) requires Mr. Fick to file a written request within five days of service of process upon him, the records show that Mr. Fick complied with that request. On March 12, 1993, the same day process was served on Mr. Fick, he wrote the clerk of the board, informing the board of the commencement of the action. Accordingly, Mr. Fick supplied timely written notice of the pending court action.

Regarding the timing of the adoption of the resolution, '3811(1)(b) gives the board the right to designate counsel within ten days of receipt of notice of the action. Petitioner alleges and respondent concedes that it adopted the resolution 17 days after receiving notice. However, the clear purpose of '3811(1)(b) is to give the board an opportunity to name counsel and, if the board fails to do so within ten days of receiving notice, to allow the individual seeking counsel and indemnification to select his or her own counsel (SeeAppeal of Burke, 28 Ed Dept Rep 423). The fact that Mr. Fick elected not to immediately select his own counsel, but to give the board additional time to select one, is not a basis for annulling the board's action.

Petitioner also requests that the March 29th resolution be annulled because the board and Mr. Fick were not acting in good faith in connection with the actions alleged to have been committed by them. Education Law '3811(1)(c) provides that the defense and indemnification of an individual board member may be a district expense if "it shall be certified by the court or the commissioner of education, as the case may be, that he appeared to have acted in good faith with respect to the exercise of his powers or the performance of his duties under this chapter" (emphasis supplied). Because the action in question is pending in Supreme Court, Ulster County, the issue of whether Mr. Fick acted in good faith cannot be decided by the Commissioner of Education, but must be determined by that Court.

I have reviewed petitioner's other contentions and find them without merit.

THE APPEAL IS DISMISSED.

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