Supreme Court, Putnam County, June 5, 2023

Perillo and Hill, LLP (John Ciampoli of counsel) for James Nolan and another, defendants/respondents.

John Sarcone for plaintiffs/petitioners.

John M. Nonna, County Attorney (Justin R. Adin of counsel), and Cuti Hecker Wang, LLP (Alexander Goldenberg and Eric Hecker of counsel) for Westchester County Board of Legislators and others, defendants/respondents.

Wilson Elser Moskowitz Edelman & Dicker LLP (John M. Flannery of counsel) for Westchester County Board of Elections and others, defendants/respondents.

On the "cross-claim/cross-complaint/cross-motion" of defendants/respondents Margaret Cunzio and James Nolan for a judgment pursuant to CPLR article 78 annulling the determination of the Westchester County Attorney denying them representation in this matter at County expense, and for an order disqualifying the County Attorney from representing the Westchester County Board of Legislators herein, it is ordered that the "cross-claim/cross-complaint/cross-motion" is disposed of as follows:

Factual Background

After the 2020 Census the County of Westchester, through its Board of Legislators (BOL), engaged in its decennial redistricting process. The BOL is composed of 17 legislators. Defendants/respondents Margaret Cunzio and James Nolan are the only members of the BOL's minority caucus. On September 22, 2022, after the BOL's expert published his initial redistricting plan, Legislator Nolan wrote County Attorney{**80 Misc 3d at 405} John Nonna stating that he wanted to retain counsel to challenge the redistricting plan and requested that his attorney's fees be paid through the County Attorney's Office. By letter dated September 23, 2022, Mr. Nonna denied the request on two grounds. First, absent authorization by the BOL, the County Attorney could not commence litigation or authorize counsel on Mr. Nolan's behalf. Second, Mr. Nolan has no standing in his legislative capacity to challenge the redistricting maps, but only in his capacity as a candidate or voter affected by the maps. Therefore, authorizing payment of his attorney's fees would amount to an unconstitutional use of public funds to pay for his private interests.

The BOL thereafter approved a final redistricting plan that was signed into law on December 9, 2022. Legislators Cunzio and Nolan were the only members of the BOL to vote against the redistricting legislation. On January 17, 2023, they wrote County Attorney Nonna stating that they believed the legislation to be illegal and that they intended to retain counsel to challenge the redistricting plan, and again requested that attorney's fees be paid through the County Attorney's Office. By letter dated January 23, 2023, Mr. Nonna denied the request, reiterating the objections set forth in his letter of September 23, 2022.

On March 20, 2023, a group of voters commenced this proceeding against the BOL, certain named members thereof (including Legislators Cunzio and Nolan) in their official capacities, and other respondents to challenge the redistricting plan. The petition, and an amended petition filed on March 22, 2023, accused Ms. Cunzio and Mr. Nolan of no wrongdoing and sought no relief against them. County Attorney Nonna's offer to waive any necessary party defense if the petitioners dropped the individual members of the BOL as respondents was declined by petitioners' counsel.

On March 21, 2023, Legislators Cunzio and Nolan wrote Mr. Nonna stating that they were in agreement with the petitioners and were obtaining counsel. Once again, they requested that their attorney's fees be paid by Westchester County. Attorney John Ciampoli, Esq., wrote Mr. Nonna stating that "it is apparent from a review of the pleadings that the Minority Caucus and its members will not take the same position as the Majority Caucus of the Legislature," and requesting a retainer or signed contract for legal services on their behalf. Responding by letter dated March 23, 2023, Mr. Nonna construed those{**80 Misc 3d at 406} letters as a request for defense under section 297.31 of the Laws of Westchester County (LWC). He stated that (1) Legislators Cunzio and Nolan had indicated they would not support the defense of this case; (2) LWC § 297.31 (4) conditioned the County's duty to defend on "the full cooperation of the employee in the defense of such action or proceeding and in defense of any action or proceeding against the County based upon the same act or omission" (emphasis added); and (3) therefore, they were not entitled to a defense paid for by the County. Mr. Nonna further observed that "[i]t also seems clear that Legislators Cunzio and Nolan have been improperly joined in this case as defendants."

On March 27, 2023, Legislators Cunzio and Nolan requested that the County Attorney [*2]reconsider his denial of litigation funding, and further requested that he prepare an answer and cross-petition reflecting their position that the redistricting plan was illegal and violative of their constitutional rights and those of the residents of Westchester County. By letter dated March 28, 2023, Mr. Nonna reiterated his view that by taking a position that the County had adopted an illegal redistricting plan Legislators Cunzio and Nolan had admitted they were not cooperating in the defense of this proceeding and hence per LWC § 297.31 (4) were not entitled to defense by the County. In support of his position, Mr. Nonna cited case law holding that General Municipal Law § 50-k (which he viewed as "substantively mirror[ing] the provisions of LWC § 297.31") "does not provide for representation of City employees by private attorneys at City expense where there is a conflict of interest between the City and the employee."

The County Attorney thereafter retained Alexander Goldenberg, Esq., in an "of counsel" capacity to assist with this litigation. On April 3, 2023, Legislators Cunzio and Nolan wrote to Mr. Goldenberg directing him to prepare a cross-petition on their behalf seeking invalidation of the redistricting plan. By letter dated April 4, 2023, County Attorney Nonna denied the request, reiterating his position with respect to LWC § 297.31 (4), and in addition stating:

"We further note that although you state that you seek counsel for your 'defense,' your letter makes clear that your intent is to file a cross-petition and align with the Petitioners in the prosecution of this proceeding. We have offered Petitioners' counsel solutions for removing you as named Respondents,{**80 Misc 3d at 407} but he has declined each suggestion, in coordination with Mr. Ciampoli. As stated above and in my prior correspondence, the law does not allow for private counsel at County expense under these circumstances."

The Application of Legislators Cunzio and Nolan

Legislators Margaret Cunzio and James Nolan filed a "cross-claim/cross-complaint/cross-motion" for (1) a judgment pursuant to article 78 annulling the determination of the Westchester County Attorney denying them representation in this matter at County expense, and (2) an order disqualifying the County Attorney from representing the BOL herein.

Standard of Review Pursuant to Article 78

This challenge of Legislators Cunzio and Nolan to the Westchester County Attorney's denying them representation herein at County expense is properly brought pursuant to article 78 of the Civil Practice Law and Rules. (See Matter of Williams v City of New York, 64 NY2d 800 [1985].)

In an article 78 proceeding, the petitioner may raise the question whether a determination "was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion" (CPLR 7803 [3]).

" 'In reviewing an administrative agency determination, [courts] must ascertain whether there is a rational basis for the action in question or whether it is arbitrary and capricious' (Matter of Gilman v New York State Div. of Hous. & Community Renewal, 99 NY2d 144, 149 [2002] . . . ). An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts (see Matter of Pell v Board of Educ. . . . , 34 NY2d 222, 231 [1974]). If the court finds that the determination is supported by a rational basis, it must sustain the determination even if the court concludes that it would have reached a different result than the one reached by the agency (id.)." (Matter of Peckham v Calogero, 12 NY3d 424, 431 [2009].)

To prevail, Legislators Cunzio and Nolan must demonstrate the existence of a statutory predicate for the County's payment of their attorney's fees.

"[I]n the absence of extraordinary circumstances . . . , a municipality may not be compelled [*3]to compensate for services{**80 Misc 3d at 408} rendered by an attorney unless his retainer is authorized by statute or appropriate resolution of the governing body (e.g., Cahn v Town of Huntington, 29 NY2d 451, 454-455 . . . )." (Corning v Village of Laurel Hollow, 48 NY2d 348, 351 [1979].) In Cahn v Town of Huntington (29 NY2d 451 [1972]), the Court of Appeals wrote:

"It is well-settled law that an attorney may not be compensated for services rendered a municipal board or officer unless he has been retained in accordance with statutory authority. In other words, the power to employ counsel by a municipal board or officer is not deemed to be incidental to such board or officer. Rather, express authority, either by statute or by appropriate resolution of the governing body, must be shown to justify the retention of an attorney by a municipal board or officer. The salient purpose underlying this rule is, of course, to ensure responsible municipal government. Not only is it designed as a safeguard against the extravagance or corruption of municipal officials, as well as against their collusion with attorneys, but also, to prevent confusion and contradiction in the direction of the municipality's litigation." (Cahn, 29 NY2d at 454-455 [citations omitted].)

In Zimmer v Town of Brookhaven (247 AD2d 109 [2d Dept 1998]), the Second Department further elaborated on the contours of this issue:

"When a public employee looks to the public purse to be defended, compensated, indemnified, or reimbursed in connection with legal proceedings brought against that employee, a number of themes come into play, two of which have been recurrent. On the one hand, there is the long-standing and frequently invoked constitutional prohibition against the use of public moneys for private purposes (NY Const, art VIII, § 1 . . . ). Often balanced against this is the principle that in appropriate cases and under fixed criteria, an employer, including a governmental employer, should stand behind an employee who is sued for acts performed while in the course of a duty for that employer.

"Before the State Legislature sought to create comprehensive standards with regard to these sometimes competing interests, a body of case law evolved. Based on the belief that a person who took{**80 Misc 3d at 409} on public employment was perceived to have also assumed the risks of litigation, the earlier cases evinced an extreme reluctance to impose any obligation on public employers to defend or indemnify their employees. Although this perception gave way to the recognition that defense and indemnification of employees, in proper cases, may be considered an emolument of public service, the public employer's obligation has been construed narrowly, defeating employee claims that did not fall clearly within a particular statutory authorization, so as to rest upon a strictly public, as opposed to private, benefit. It was also well settled that any such employee claims needed a pre-existing, legislative basis. Because it amounts to a prohibited public gift, a retroactive authorization has been held to fail." (Zimmer, 247 AD2d at 110-111 [citations omitted].)

The Court of Appeals in Cahn articulated a narrow exception to the general rule that express statutory authorization for the public payment of a municipal employee's attorney's fees is required:

"Notwithstanding lack of specific statutory authority, a municipal board or officer possesses implied authority to employ counsel in the good faith prosecution or defense of an action undertaken in the public interest, and in conjunction with its or his official duties where [*4]the municipal attorney refused to act, or was incapable of, or was disqualified from, acting. This authority is necessarily implied in order to enable the board to effect the purposes of its creation and to allow it to properly function. It should be abundantly clear that in view of the stringent requirements that must be satisfied, the policy underlying the general rule of express authority is certainly not compromised by this exception." (Cahn, 29 NY2d at 455 [citations omitted].)

So far from establishing an "implied authority" by virtue of their official duties or functions to employ counsel in this matter, Legislators Cunzio and Nolan have not even demonstrated that they have standing in their legislative capacity to challenge the legality of the County's redistricting plan. In Silver v Pataki (96 NY2d 532 [2001]), the Court of Appeals wrote:

"Cases considering legislator standing generally {**80 Misc 3d at 410}fall into one of three categories: lost political battles, nullification of votes and usurpation of power. Only circumstances presented by the latter two categories confer legislator standing (see, e.g., Coleman v Miller, 307 US 433 [vote nullification]; Dodak v State Admin. Bd., 441 Mich 547, 495 NW2d 539 [usurpation of power belonging to legislative body]; cf., Raines v Byrd, 521 US 811 [no standing to challenge lost vote]; Matter of Posner v Rockefeller, 26 NY2d 970 [same])." (Silver v Pataki, 96 NY2d at 539.)

In Matter of Posner v Rockefeller (26 NY2d 970 [1970]), individual assemblymen brought a constitutional challenge against appropriations bills enacted into law over their opposition. In the absence of any claim of vote nullification or direct, personal injury beyond abstract institutional harm, the Court of Appeals held that they lacked standing to sue. (See id. at 971-972; see also Silver v Pataki, 96 NY2d at 540.) Thus, in Matter of Colton v Town Bd. of Town of Amherst (72 AD3d 1638 [4th Dept 2010]), where a member of the Town Board commenced an article 78 proceeding to challenge the Town's actions with respect to proposed development of vacant property, the Court held:

"Ward lacks standing to bring this proceeding in his capacity as a member of the Town Board (see Caruso v New York City Police Dept. Pension Funds, Arts. 1 & 2, 72 NY2d 568, 574-576 [1988]). The record does not support the contention of Ward that the challenged actions of the Town Board nullified his vote and usurped his power as a Town Board member, thereby providing him with standing (cf. Silver v Pataki, 96 NY2d 532, 539-540 [2001], rearg denied 96 NY2d 938 [2001]). Rather, Ward is merely a member of the Town Board who voted in the minority with respect to the proposed development, and he thus has not suffered any injury sufficient to provide him with standing (see Matter of Posner v Rockefeller, 26 NY2d 970 [1970])." (Colton, 72 AD3d at 1638-1639.)

Here, then, Legislators Cunzio and Nolan, as members of the BOL who simply voted in the minority against a redistricting plan passed over their opposition, lack standing in their capacity as legislators to challenge that plan even on constitutional grounds. (See Matter of Posner v Rockefeller.) Where a member of a legislative body lacks legislative standing to sue, he can{**80 Misc 3d at 411} scarcely claim "implied authority" per Cahn, by virtue of his official duties or functions to employ counsel in the matter, and the Court of Appeals has so held. (See Caruso v New York City Police Dept. Pension Funds, Arts. 1 & 2, 72 NY2d 568, 574-578 [1988] [denying application for payment of attorney's fees from public funds]; see also Wiggin & Dana, LLP v City of Buffalo, 22 Misc 3d 1101[A], 2006 NY Slip Op 52678[U], *3-4 [Sup Ct, Erie County 2006].)

Therefore, to prevail here, Legislators Cunzio and Nolan must demonstrate the existence of a statutory predicate for the County's payment of their attorney's fees.

County Law § 501 (2) does not bar the County's payment of attorney's fees payable under LWC § 297.31.

The County argues, first, that County Law § 501 (2) precludes the payment of attorney's fees for Legislators Cunzio and Nolan from County funds. However, by virtue of County Law § 2 (b), it does not bar the County's payment of attorney's fees payable under LWC § 297.31.

County Law § 501 (2) provides:

"Whenever the interests of the board of supervisors or the county are inconsistent with the interests of any officer paid his compensation from county funds, the county attorney shall represent the interests of the board of supervisors and the county. In such case the officer may employ an attorney-at-law at his own expense unless the provisions of section [18] of the public officers law are applicable."

Since the interests of the BOL are plainly inconsistent with those of Legislators Cunzio and Nolan, County Law § 501 (2) dictates that the County Attorney represent the interests of the BOL and the County, and further, that Legislators Cunzio and Nolan employ counsel at their own expense unless Public Officers Law § 18 applies.

Public Officers Law § 18 (2) in turn provides:

"The provisions of this section shall apply to any public entity:

"(a) whose governing body has agreed by the adoption of local law, bylaw, resolution, rule or regulation (i) to confer the benefits of this section upon its employees, and (ii) to be held liable for the costs incurred under these provisions."

Thus, section 18 of the Public Officers Law is optional and applies{**80 Misc 3d at 412} only if expressly adopted by a local governing body. (See Matter of Scimeca v Brentwood Union Free Sch. Dist., 140 AD3d 1174, 1175 [2d Dept 2016]; Matter of Coker v City of Schenectady, 200 AD2d 250, 252 [3d Dept 1994]; Wyman v Zeltins, 142 AD2d 913, 914 [3d Dept 1988]; Hennessy v Robinson, 985 F Supp 283, 287-288 [ND NY 1997]; Mothersell v City of Syracuse, 952 F Supp 112, 115 [ND NY 1997].) In Wyman v Zeltins, the municipality adopted a local law providing for the defense of its employees in civil actions and proceedings prior to the enactment of Public Officers Law § 18, and never expressly adopted section 18. In such circumstances, the local law is controlling and Public Officers Law § 18 does not apply. (See 142 AD2d at 914; Hennessy v Robinson, 985 F Supp at 286-288.) Here, similarly, Westchester County adopted LWC § 297.31—which provides for the defense and indemnification of its employees in specified circumstances—prior to the enactment of Public Officers Law § 18 and has never expressly adopted section 18. Hence, Public Officers Law § 18 is not applicable to this case.

However, it does not follow that County Law § 501 (2) would require Legislators Cunzio and Nolan to employ counsel at their own expense despite entitlement to representation at County expense under LWC § 297.31. In the event of a conflict between County Law § 501 (2) and LWC § 297.31, County Law § 2 (b) dictates that section 297.31 would be controlling.

County Law § 2 (b) provides:

"The provisions of this chapter in so far as they are in conflict with or in limitation of a provision of any alternative form of county government heretofore or hereafter adopted by a county pursuant to section two of article nine of the constitution, or any administrative code, county government law or civil divisions act enacted by the legislature and applicable to such county as now in force or hereafter amended, or in conflict with any local law heretofore or hereafter adopted by a county under an optional or alternative [*6]form of county government, shall not be applicable to the county, unless a contrary intent is expressly stated in this chapter." (Emphasis added.)

It appears that LWC § 297.31 was adopted by Westchester County under an alternative form of county government authorized by the State of New York by chapter 617 of the Laws of 1937. (See Westchester County Charter, ch 101, § 101.01.) {**80 Misc 3d at 413}Construing County Law § 2 (b) the Second Department in Long Is. Liquid Waste Assn. v Cass (115 AD2d 710 [2d Dept 1985]) wrote:

"This provision effectuates the design of the County Law which, unlike most general laws, is intended to provide rules of local government in instances where a county has not done so by adopting an alternate form of government (see, Note of Commission of Uniform County Law, L 1950, ch 691, at 1580, n 2). Thus, where a county has adopted its own form of government, the provisions of that county's duly adopted local laws apply instead of those of the County Law. This is so even if the County Law provisions are inconsistent with those of the local law, unless the County Law expressly indicates that its provisions should apply notwithstanding County Law § 2 (b)." (Id. at 711-712.)

There is no indication in County Law § 501 that its provisions shall apply notwithstanding County Law § 2 (b). Hence,

"any conflicts between the provisions of the County Law and any local law or administrative code shall be decided in favor of the local law or administrative code. (See, Matter of Gallagher v Regan, 42 NY2d 230 [1977]; Long Is. Liquid Waste Assn. v Cass, 115 AD2d 710 [2d Dept 1985]; Martin v Eagle Hill Found., 111 AD2d 372 [2d Dept 1985].)" (Lawrence v County of Greene, 178 Misc 2d 716, 718 [Sup Ct, Greene County 1998]; cf. Caputo v County of Suffolk, 275 AD2d 294, 296 [2d Dept 2000], citing County Law § 2 [b] [Court holds that County Law § 501 (2) did not preclude cause of action by county employee against county for payment of attorney's fees under "implied authority" rationale of Cahn v Town of Huntington].)

Therefore, if and to the extent that there is any inconsistency between County Law § 501 (2) and LWC § 297.31, section 297.31 prevails: notwithstanding section 501 (2)'s dictate that they obtain counsel at their own expense where their interests are inconsistent with those of the BOL or the County, Legislators Cunzio and Nolan may seek representation in this matter at County expense if they are entitled thereto by virtue of the provisions of LWC § 297.31.

LWC § 297.31

LWC § 297.31 provides in pertinent part:

{**80 Misc 3d at 414}"2. a. Upon compliance by the employee with the provisions of subdivision 4. of this section, the County shall provide for the defense of the employee in any civil action or proceeding . . . arising out of any alleged act or omission which occurred while the employee was acting within the scope of his or her public duties. . . .

"b. Subject to the provisions set forth in paragraph a. of this subdivision, the employee shall be entitled to be represented by the County Attorney, except that the employee shall be entitled to be represented by private counsel in any civil judicial proceeding as follows:

"i. Whenever the County Attorney determines, based upon an investigation and review of the facts and circumstances of the case, that representation by the County Attorney would be inappropriate; or

"ii. . . . ; or

"iii. Whenever a court of competent jurisdiction, upon proper motion or by a special proceeding, determines that a conflict of interest exists and that the employee is entitled [*7]to be represented by private counsel; and

"iv. Where such representation by private counsel is approved by act of the County Board. . . .

"4. The duty to defend or indemnify and save harmless prescribed by this section shall be conditioned upon . . . (iii) the full cooperation of the employee in the defense of such action or proceeding and in defense of any action or proceeding against the County based upon the same act or omission and in the prosecution of any appeal."

The admission of Legislators Cunzio and Nolan that their position herein is inconsistent with that of the County does not per se preclude their "full cooperation" in the defense of this proceeding within the meaning of LWC § 297.31 (4).

Legislators Cunzio and Nolan asserted their position, quite frankly at odds with the BOL, that the County had adopted an illegal redistricting plan. County Attorney Nonna construed their assertion as an admission that they were not cooperating in the defense of this proceeding within the meaning of LWC § 297.31 (4), which categorically disentitled them to representation at County expense under section 297.31. In support of his position, Mr. Nonna cited case law holding that General{**80 Misc 3d at 415}Municipal Law § 50-k (which he viewed as "substantively mirror[ing] the provisions of LWC § 297.31") "does not provide for representation of City employees by private attorneys at City expense where there is a conflict of interest between the City and the employee." The County Attorney's position in this regard is irreconcilable with the language of section 297.31. Moreover, his resort to case law construing General Municipal Law § 50-k was unfortunate, as that statute does not "substantively mirror" section 297.31 but varies in fundamental respects bearing directly on the issue herein presented.

Subdivision (2) (b) of LWC § 297.31 expressly provides that county employees are entitled to representation by private counsel in civil judicial proceedings when representation by the county attorney would be "inappropriate" (subpara [i]) or when "a conflict of interest exists" (subpara [iii]). On the one hand, then, the County's duty to provide representation by private counsel exists when the interests of the employee and the County are in conflict. On the other hand, per section 297.31 (subd [2] [a]; [2] [b]; [4]), the County's duty is conditioned on "the full cooperation of the employee in the defense of such action or proceeding and in defense of any action or proceeding against the County based upon the same act or omission." There is obvious tension between the employee's statutory entitlement to private counsel in conflict situations and his concomitant duty to render "full cooperation" in defense of a party with conflicting interests. If, as the County Attorney insists, "full cooperation" by the employee were construed to require him to support the County's interests on pain of forfeiture of his statutory right to representation by private counsel to pursue his own conflicting interests, then the County's express duty to provide representation by private counsel in conflict situations would be rendered nugatory, if not wholly eclipsed, by the condition.

Canons of statutory construction require that "apparently conflicting statutory provisions . . . be harmonized in order to give effect to all of their parts." (See Matter of Brooklyn Union Gas Co. v Commissioner of Dept. of Fin. of City of N.Y., 67 NY2d 1036, 1038 [1986]; see also Matter of Burger King v State Tax Commn., 51 NY2d 614, 620-621 [1980]; Matter of Sun Beach Real Estate Dev. Corp. v Anderson, 98 AD2d 367, 369 [2d Dept 1983], affd 62 NY2d 965 [1984]; Jenkins v Fieldbridge Assoc., LLC, 65 AD3d 169, 173 [2d Dept 2009]; McKinney's Cons Laws of NY, Book 1, Statutes §§ 97, 98.)

{**80 Misc 3d at 416}Resort to General Municipal Law § 50-k in this context is useless. That statute provides only for the [*8]representation of public employees by corporation counsel and, unlike LWC § 297.31, makes no provision whatsoever for representation of employees by private attorneys at public expense where there is a conflict of interest between the city and the employee. (See General Municipal Law § 50-k [2]; Mercurio v City of New York, 592 F Supp 1243, 1245 [ED NY 1984].) Consequently, there is no tension or contradiction within the statute between the employee's right to representation (per General Municipal Law § 50-k [2], only by corporation counsel) and his duty to cooperate in defense of the proceeding (see General Municipal Law § 50-k [4]). Therefore, case law construing section 50-k is wholly inapropos here.

Public Officers Law § 18, unlike General Municipal Law § 50-k, does "substantively mirror" LWC § 297.31 in that it provides for the representation of public employees by private counsel in civil actions where a conflict of interest exists, conditioned on "the full cooperation of the employee in the defense of such action or proceeding and in defense of any action or proceeding against the public entity based upon the same act or omission." (See Public Officers Law § 18 [3] [b]; [5].) Therefore, case law interpreting section 18 is useful in addressing the tension inherent in both that statute and LWC § 297.31.

In Matter of Walsh v County of Saratoga (256 AD2d 953 [3d Dept 1998]), the petitioners commenced proceedings to invalidate the tax sale of certain parcels of real estate for failure to pay property taxes. The County Treasurer asserted a policy position directly in conflict with that of the County and its Board of Supervisors. Upon being advised that the County Attorney would represent the interests of the County and the Board, the Treasurer sought independent counsel. (See id. at 953-954.) The County opposed the Treasurer's request for attorney's fees pursuant to Public Officers Law § 18 on the ground that he had failed to cooperate in the County's defense. The Third Department held:

"Equally without merit is the County's contention that fees should be denied because the Treasurer failed to cooperate in the County's defense. The record is replete with evidence that the predominant issue was whether the Board had the ultimate authority to remove parcels from a public auction{**80 Misc 3d at 417} and whether the Treasurer could accept back taxes for the redemption thereof prior to conveyance to the County. While the Treasurer, an elected official, made policy determinations which resulted in conflict with that of both the Board and the County, his position was not uncooperative." (Matter of Walsh v County of Saratoga, 256 AD2d at 954-955 [emphasis added].)

In other words, the Third Department held, directly contrary to the position asserted by County Attorney Nonna, that a county employee who takes a litigation position contrary to that espoused by the county has not per se failed to cooperate in the county's defense and forfeited his statutory right to representation at county expense. (See also Merrill v County of Broome, 244 AD2d 590, 591-593 [3d Dept 1997] [where county employees maintained that they were acting within scope of employment and county defended on ground that they were not agents of the county, conflict existed and employees were entitled to payment of attorney's fees pursuant to Public Officers Law § 18]; Kelly v City of Mount Vernon, 2020 WL 4883892, *4, 2020 US Dist LEXIS 150799, *10 [SD NY, Aug. 19, 2020, 7:19-cv-11369 (PMH)] ["Where a municipality's duty to defend has been triggered, if Corporation Counsel or the Court has determined that representation by the Corporation Counsel is inappropriate due to a conflict of interest, the employee is entitled to representation by private counsel of his own choice, with attorneys' fees and litigation expenses to be paid by the City"].)

The Court of Appeals' decision in Matter of Lancaster v Incorporated Vil. of Freeport (22 NY3d 30 [2013]) further demonstrates that the meaning of "full cooperation" is more nuanced than County Attorney Nonna suggests. In Lancaster, Village employees [*9]contested the Village's revocation of a resolution providing for their defense and indemnification in certain civil actions after they refused consent to a proposed settlement. Construing Public Officers Law § 18, the Court of Appeals likened a municipal employer's statutory duty to defend a public officer to an insurance company's contractual duty to defend its insured, and the public officer's duty of cooperation to the insured's corresponding obligation to cooperate in defense of the action as a condition of his right to defense and indemnification. (See id. at 38-39.) The Court defined lack of cooperation in terms drawn from insurance law:{**80 Misc 3d at 418}

" 'In order to disclaim coverage on the ground of an insured's lack of cooperation, the carrier must demonstrate that (1) it acted diligently in seeking to bring about the insured's cooperation, (2) the efforts employed by the carrier were reasonably calculated to obtain the insured's cooperation, and (3) the attitude of the insured, after cooperation was sought, was one of willful and avowed obstruction' (New York State Ins. Fund v Merchants Ins. Co. of N.H., 5 AD3d 449, 450 [2d Dept 2004]; Thrasher v United States Liab. Ins. Co., 19 NY2d 159, 168 [1967])." (Matter of Lancaster, 22 NY3d at 39.)

Confronted with a case where the interests of the Village (as "insurer") and those of the employees (as "insured") were at odds over the proposed settlement of the litigation, the Court did not hold that Public Officers Law § 18 required the employees to abandon their own interests and consent to any settlement proposed by the Village in order to provide "full cooperation" in defense of the action. The Court's ruling upholding the Village's determination to revoke its defense and indemnification of the employees for lack of cooperation was predicated on considerations including (1) the generosity of the settlement offer; (2) the Village's exposure to potentially ruinous liability in the event of a failure to settle; (3) the diligence of Village counsel in meeting the employees' reservations and explaining the propriety of the settlement; and (4) the unreasonableness of the employees' rejection of the settlement. (See id. at 39-40.) This holding, too, reflects a view of "full cooperation" at odds with that espoused by County Attorney Nonna in denying Legislators Cunzio and Nolan representation in this matter at County expense.

The court need not determine what "full cooperation" pursuant to LWC § 297.31 (4) would entail in the circumstances of the case at bar. It is sufficient at this juncture to hold based on the analysis and authority cited above that County Attorney Nonna's determination that Legislators Cunzio and Nolan did not, and could not, meet their obligations under section 297.31 (4), simply because they wished to press their view that the County's redistricting plan was illegal and violative of their constitutional rights and those of the residents of Westchester County, was erroneous as a matter of law.{**80 Misc 3d at 419}

Nevertheless, Legislators Cunzio and Nolan are not entitled to representation at County expense because they are misaligned as defendants/respondents in this proceeding.

[1] LWC § 297.31 provides in pertinent part:

"2. a. Upon compliance by the employee with the provisions of subdivision 4. of this section, the County shall provide for the defense of the employee in any civil action or proceeding . . . arising out of any alleged act or omission which occurred while the employee was acting within the scope of his or her public duties." (Emphasis added.)

The statutory language makes perfectly clear that the duty to defend established by section 297.31 is exclusively in conjunction with the "defense" of County employees in proceedings arising out of acts or omissions within the scope of their public duties. Accordingly, in denying Legislators Cunzio and Nolan representation pursuant to LWC § 297.31, County Attorney Nonna [*10]stated:

"We further note that although you state that you seek counsel for your 'defense,' your letter makes clear that your intent is to file a cross-petition and align with the Petitioners in the prosecution of this proceeding. We have offered Petitioners' counsel solutions for removing you as named Respondents, but he has declined each suggestion, in coordination with Mr. Ciampoli. As stated above and in my prior correspondence, the law does not allow for private counsel at County expense under these circumstances."

As the County observes, Legislators Cunzio and Nolan are not seeking a "defense" in this proceeding. They are not accused of wrongdoing. Indeed, they voted against the challenged redistricting legislation, and have affirmatively stated that they agree with the petitioners and wish to cross-petition for the same relief. The relief petitioners request would not compel them to act or forgo action they would otherwise take. They have no role whatsoever in the enforcement of the redistricting plan.

"[I]n the context of governmental policies and programs which inevitably entail the involvement of numerous agencies, departments and officials, only those governmental entities that are primarily responsible for the challenged policy are necessary parties." (Joanne S. v Carey, 115 AD2d 4, 9 [1st Dept 1986]; see also Matter of A&F Scaccia Realty Corp. v New York City Dept. of Envtl. Protection, 200 AD3d 875 [2d Dept 2021]{**80 Misc 3d at 420} [governmental agency which performed challenged action must be named party in article 78 proceeding].) In this case, then, the BOL, which enacted the challenged redistricting plan, and the Board of Elections, which is responsible for its implementation, are necessary defendants/respondents herein. Individual legislators, on the other hand, are not necessary parties in a case challenging a redistricting plan. (See Ryan v McMahon, 78 Misc 3d 609, 614 [Sup Ct, Onondaga County 2023]; see also Parietti v Rockland County Exec., Sup Ct, Rockland County, index No. 035210/2022 [county executive, county legislature, and county board of elections named as respondents in constitutional challenge to redistricting map].)

Thus, Legislators Cunzio and Nolan are not necessary parties to this proceeding and are in fact misaligned as defendants/respondents herein. The court accordingly holds that they are not entitled under LWC § 297.31 to a "defense" in this proceeding at County expense. To hold otherwise would run afoul not only of the express language of section 297.31, but also, for reasons explained above (at 407-411), of the constitutional prohibition against the use of public moneys for private purposes (NY Const, art VIII, § 1).

The Motion to Disqualify the County Attorney

Legislators Cunzio and Nolan moved to disqualify County Attorney Nonna, asserting that he is obligated to represent all public officers of the County named in this litigation, including themselves, that their interests are in conflict with those of the BOL and the members of its majority caucus, and that his simultaneous representation of parties with conflicting interests is prohibited by rule 1.7 of the Rules of Professional Conduct (22 NYCRR 1200.0). The court observes that in reply papers the attorney for Legislators Cunzio and Nolan withdrew the motion to disqualify. However, in the stipulation of settlement of this proceeding, the parties expressly reserved their right to a decision on the pending applications. The court construes the stipulation as having effectively revoked the withdrawal of the disqualification motion, and accordingly renders a decision thereupon as follows.

[2] The purported conflict is wholly obviated by the court's determination above that Legislators Cunzio and Nolan are not entitled to representation herein at County expense. Therefore, County Law § 501 (2) controls:

"Whenever the interests of the board of supervisors or the county are inconsistent with the interests of{**80 Misc 3d at 421} any officer paid his compensation from county funds, the county attorney shall represent the interests of the board of supervisors and the county. In such case the officer may employ an attorney-at-law at his own expense."

Since the interests of the BOL are plainly inconsistent with those of Legislators Cunzio and Nolan, County Law § 501 (2) dictates that the County Attorney represent the interests of the BOL and the County, and further, that Legislators Cunzio and Nolan if they so choose employ counsel at their own expense. Accordingly, the motion to disqualify the County Attorney is denied.

The court has considered the other contentions raised by Legislators Cunzio and Nolan and finds them to be without merit.

It is therefore ordered, adjudged and decreed, that the "cross-claim/cross-complaint/cross-motion" of defendants/respondents Margaret Cunzio and James Nolan for a judgment pursuant to article 78 annulling the determination of the Westchester County Attorney denying them representation in this matter at County expense, and for an order disqualifying the County Attorney from representing the Westchester County Board of Legislators herein, are denied in their entirety, and the same are hereby dismissed.