Examining Sources: It Pays To Check Citations, Some Lawyers Don't 'Always Take The High Road'

Chief Judge Lawrence H. CookeIf odd sounds were heard on the evening of Tuesday, September 18th coming from the vicinity of Rock Ridge Road, five blocks east of Village Hall, they may have been the sound of the Honorable Chief Judge Lawrence H. Cooke turning over in his grave.

That night, an attorney from Nyack who consults with the Village of Monticello Board of Trustees in the absence of a duly appointed corporation counsel for the Village, attempted to twist the words of the late esteemed Chief Judge of the NYS Court of Appeals for his own purposes, creating a meaning other than the one intended by the Chief Judge.

Wisely, the board took no action on the criminal indemnification proposal after the public hearing [full audio]. The best course would be to drop the matter and not bring it back before the board.

Pushing for a Local Law authorizing interest-free loans to public officers and employees of the Village of Monticello who are or who may in the future be charged with crimes (to be "reimbursed" to the Village after a criminal conviction), Nyack lawyer Dennis Lynch inappropriately cited the case of Corning v. Laurel Hollow (48 N.Y. 2d 348 [1979]), which was decided by the late Chief Judge Cooke; as well as NYS Comptroller's Opinion 2000-1.

Although Mr. Lynch was asked roughly a week before the meeting to answer certain "Questions of Law" put to him in an e-mail, he chose not to exercise his duty to properly advise the Board of Trustees. Instead, he waited until a public hearing was in progress to rattle off the two citations to support his bald-faced false assertion that a Local Law drafted by him to defend Village Manager John LiGreci and others who have been subpoenaed in connection with a pending Grand Jury investigation complies with New York State law.

In fact, the contrary is true.

Chief Judge Cooke, writing on behalf of the majority of the highest court in New York State, was faced with a claim by former village officials for reimbursement of costs and legal fees incurred after concluding a successful defense to a civil rights action brought against them in their official capacities.

Though Mr. Lynch cited it in support of adoption of his proposal of interest-free loans to pay legal bills of Village officials accused of crimes, this case is not relevant to the measure proposed by Mr. Lynch, in which he rationalizes advance payment of personal legal fees for officials charged even with criminal misconduct.

Our esteemed Monticello native, former Chief Judge Cooke, included these words in his decision, which Mr. Lynch conveniently failed to note in his two-minute report to the board on this matter:

"One of the risks traditionally associated with the assumption of public office is that of defending oneself against charges of misconduct at one's own expense (Matter of Chapman v City of New York, 168 N.Y. 80, 85-86). The public owes no duty to defend or even aid in the defense of such a charge. As was said in Matter of Chapman (supra, at p 86): 'Whoever lives in a country governed by law assumes the risk of having to defend himself without aid from the public, against even unjust attempts to enforce the law, the same as he assumes the burden of taxation' * * * (see, also, Leo v Barnett, supra; Buckley v City of New York, 289 N.Y. 742, affg 264 App Div 116; Matter of Guarino v Anderson, supra; Matter of Kilroe v Craig, 238 N.Y. 628, affg 208 App Div 93; 17 Opns St Comp, 1961, p 125; 12 Opns St Comp, 1956, p 479)."

Chief Judge Cooke carefully emphasized that Corning vs. Laurel Hollow pertained to civil matters only, not criminal defense:

"Insofar as here relevant, section 18 generally requires a village which has adopted the provisions of that section to provide for the defense of its officers and employees in any "civil action or proceeding" arising out of any alleged act or omission which occurred or allegedly occurred while the officer or employee was acting within the scope of his or her public employment or duties (Public Officers Law, §18[2][a])."

Mr. Lynch may not appreciate the place of honor which Chief Judge Cooke holds in the memories of the people of Monticello who knew him.

With regard to Comptroller's Opinion 2000-1, Mr. Lynch was equally negligent with his mis-advice to the Board of Trustees. A careful reading reveals that the Opinion referred to a law modeled after Section 19 of the NYS Public Officers Law (which does indemnify State employees against criminal charges in some limited instances, but allowing reimbursement only after the accused official has been aquitted - not turned upside-down, as Mr. Lynch's proposal would have it).

The Opinion cited by Mr. Lynch, the meaning of which he yet again stood on its head (evidently assuming no one one the board would dare to question his expertise as a high priest of jurisprudence), states:

"The provisions of section 18, however, do not authorize a municipality to provide a defense in a criminal proceeding (see Zimmer, supra; 1986 Atty Gen [Inf] 6; cf. Wassef v State, 98 Misc 2d 505, 414 NYS2d 262 [analogous provisions of Public Officers Law, §17 do not require State to provide defense in a criminal matters]; compare Public Officers Law, §19, relative to defense and indemnification of State officers and employees in criminal proceedings). To the extent that an investigation by a district attorney into the potential commission of a crime may be considered either an 'action' or a 'proceeding' (compare General Construction Law, §§11-a, 16-a, 18-a; CPLR, 105[b], [d]; Criminal Procedure Law,§1.20[16], [18]; People v Van Der Beek, 18 AD2d 205, 238 NYS2d 676), it must usually be considered criminal in nature (see Criminal Procedure Law, §1.20[18], defining 'criminal proceeding' in part as 'any proceeding which occurs in a criminal court and involves a criminal investigation'). Similarly, a grand jury proceeding is generally regarded as a criminal proceeding (see People v Van Der Beek, supra; People ex rel Nuccio v Eighth Dist. Prison Warden of City of New York, 182 Misc 654, 45 NYS 2d 230; but see Hunt v Hamilton County, 235 AD2d 758, 652 NYS2d 402 [grand jury proceeding held to be civil action or proceeding within meaning of Public Officers Law, §18 when district attorney admitted no intention of pursuing criminal charges]). Accordingly, it is our opinion that the village in this instance may not pay the police officers' legal expenses pursuant to the provisions of section 18 of the Public Officers Law."

The Local Law Mr. Lynch proposes depends on Section 18 of the Public Officers Law. He evidently prefers to rely on Section 18 (which the very authorities he cites confirm do not apply to criminal defense) because that section allows indemnification (against civil suits) in advance; while Section 19 (which applies to criminal defense) only permits repayment to a public officer after an acquittal or dismissal.

During the September 18th public hearing, attorney and recently retired Acting Village Justice Leo Glass offered the following public comment on the proposed law:

"Mr. Lynch has provided us with certain legal citations and legal authorities which I am not prepared to answer to at this time because I was not aware of what he was going to bring up. I think this is an ill-conceived idea. The Village, I am sure, has liability insurance covering the actions of certain employees, including the board. And I think for this Village, with its high tax burden, to now assume the responsibility for legal fees for anybody and everybody who commits any crime of any sort is absolutely absurd. It is beyond the realm of probability that we should pass this, and I would ask that the matter be adjourned until such time as I have an opportunity to respond to Mr. Lynch's legal citations because, just as you know, every time somebody cites a law in their favor, there is a law cited against them."

The taxpayers of Monticello will be grateful to Judge Glass for any professional legal analysis, opinion, or other services that he is able and willing to offer in response to Mr. Lynch's "ill-conceived idea".