Allows a county clerk to employ an attorney-at-law to defend against certain civil actions or proceeding brought against him in his official capacity

The bill would also insure that removal actions are not undertaken by the Governor against local officials when such officials act in good faith and with a reasonable belief that they are upholding their oath of office and the law.

Summary of specific provisions

Section 1 of this bill provides that the defense and indemnification of county clerks in actions or proceedings based on action or inaction as an agent of the state DMV commissioner should be a state expense and that defense and indemnification should be provided when the clerk acts in good faith. Section 2 of this bill limits those circumstances under which the Governor may bring a proceed- ing to remove a local public official.

Effects of the present law which this bill would affect

Adds a new subdivision 3 to section 409 of the county law and amends subdivision 1 of section 34 of the public officer's law.

Justification

County clerks, in most counties of the state, are desig- nated as agents of the Commissioner of Motor Vehicles for the purpose of issuing and renewing driver's licenses, non-driver IDs and registra- tions. Clerks are elected officials in the counties they serve and are not given any additional compensation by the state for handling the DMV functions. While the county may get processing fees, such fees are meant to cover the costs of operating the county clerk's DMV operations. State public officers are provided defense and indemnification at state expense. Therefore, it is reasonable that the state should provide for the defense and indemnification of county clerks when they are perform- ing state functions so long as the clerks discharge their state duties in good faith. It has recently been suggested that the state DMV Commis- sioner or the Governor could take action against county clerks who refuse to issue driver's licenses to illegal aliens who cannot produce valid Social Security Numbers or documentation of their ineligibility for the same. Some clerks have expressed the view that the new policy violates the law and were they to follow the policy they would be violating the law and their oath of office. Those clerks should not be penalized for acting in good faith with a reasonable belief that the new policy violates the law when this issue has not been subject to legisla-

tive or judicial scrutiny and when the opportunity exists for such ille- gal aliens to visit state DMV operated offices to obtain their licenses. A small minority of county clerks supports the new policy, but they too face possible litigation if they comply with the new DMV policy. The defense of such litigation should be a state expense and not a county expense. The new DMV policy puts the County Clerks in the difficult position of either complying with the policy and facing action because they are violating the law or refusing to comply with the policy and facing potential state action or even removal from office. Elected public officials who have dutifully served the public and this state should not be placed in this position and should be protected from friv- olous claims or heavy-handed attempts to compel them to comply with a policy that they reasonably believe to be illegal.

Prior legislative history

2008: A.9488; Referred to Local Governments 2007: A.9488; Referred to Local Governments

Fiscal implications for state and local governments

None to minimal.

Effective date

This act shall take effect immediately.