Holding Court is a series by retired Rye City Court Judge Joe Latwin. Latwin retired from the court in December 2022 after thirteen years of service to the City.
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By Joe Latwin
Why do the innocent taxpayers have to pay?
A person’s civil rights are violated by a government employee. A government vehicle hits your car. A clerk wrongfully fails to respond to a Freedom of Information Law request. When the plaintiff sues and wins, it is not the wrongdoer who pays; it is the taxpayers even though the taxpayers had no control over the situation and did nothing wrong!
Everyone agrees that injured people should be made whole, but the question is who is to pay them. Most people also understand that government workers would not choose to do jobs that would expose them to lawsuits.
There is a law in New York that provides for defense and indemnification of State public officers and employees in any civil action or proceeding in any state or federal court arising out of any alleged act or omission which occurred or is alleged in the complaint to have occurred while the employee was acting within the scope of his public employment or duties. I had the opportunity to use this law once while I was a judge. A whacko sued me in my capacity as a judge. I told Mr. Whacko he could sue me all he wanted and it wouldn’t cost me a dime. The State would provide me with a defense (by the Attorney General’s Office) and in the unlikely event he won, the State, not me, would pay him. I also told him he was destined to lose since I was cloaked with judicial immunity for my acts as judge. I was correct and the case was quickly dismissed on that ground.
Rye also has a defense and indemnity resolution similar to the State law. When Home Depot sued each of the Council members for $50 million (more than I make in a good day!) because we decided to appeal a ruling, I, as a Councilman, invoked Rye’s defense and indemnification resolution. The City paid for our defense and we were successful and the claims were dismissed.
But what happens if the City loses? The taxpayers would end up paying up to the self-insured amount plus any liability beyond insurance coverage. A favorite case of mine involves a Town in Rockland. Its Building Inspector improperly denied a building permit to a developer (allegedly for political purposes). The Town was sued and lost a $7 million dollar judgment. When the plaintiff threatened to have a Town park sold to satisfy the judgment, the Town paid up – or more, precisely the taxpayers of the Town paid up.
Is that fair? Why should my taxes go up to pay for something I didn’t do? The municipality can always bring the actual wrongdoer into the case as a defendant. If we did not shield employees from liability, where old we get good workers? If we did, how much would we have to pay them to assume the liability?
