The petitioner, Jason Golub, previously held the position of City Commissioner of Public [*2]Works ("DPW") for the respondent, City of Saratoga Springs ("City"). The City police department investigated the petitioner for using a DPW employee to perform repairs at his personal residence. As a result of the police investigation into the matter, the investigating officer filed a misdemeanor complaint in City Court against the petitioner in or around November 2024, charging the petitioner with committing the crime of Official Misconduct (see Penal Law § 195.00[1]).^[FN1]

The misdemeanor complaint states, as follows:

"[in December 2023, the petitioner], while acting as the Commissioner of Public Works, a Public Servant did accept repairs made to his home by an employee of the City of Saratoga Springs Department of Public Works. The repairs made were unauthorized as they utilized property belonging to the City of Saratoga Springs for personal benefit. This benefit was obtained when an employee of the City of Saratoga Springs completed the repairs during his regular working hours for the City of Saratoga Springs, which is unauthorized per the City of Saratoga Springs Policy Manual" (NYSCEF, Document No. 13).

The misdemeanor complaint is supported by, among other things, the sworn statement of the DPW employee who performed the work. He alleges that he performed repairs in March 2023 for his direct supervisor, the Deputy Commissioner, without compensation and while on City time. He alleges that his direct supervisor contacted him in December 2023 to fix a clogged drain at the petitioner's house. He punched out of work around 3:30 p.m. and met his direct supervisor. He grabbed a plumbing tool out of a City van to bring with him. He then followed his direct supervisor to the petitioner's house in his personal vehicle. When they arrived, the petitioner let them into the house. The employee then unsuccessfully tried to clear the drain using the plumbing tool. He told the petitioner and his direct supervisor that he needed a longer tool and that he needed to get it from the City van. They agreed that he would follow up the next day to try to fix the drain by putting "Green Gobbler" down the drain to see if that worked.

This employee further alleges that he returned to the petitioner's house the next day, around 10 a.m., with another person who routinely worked with him. He called his direct supervisor to let him know that he wanted to put the drain cleaner down the drain, and then they agreed that he would go over there. When they arrived, the petitioner let them inside. The employee then put the Green Gobbler down the drain and left. The petitioner was still at the house when he left. At about 12 p.m., the employee went back over to the petitioner's house. The petitioner again met them there, and they flushed the drain. The drain worked after about a half hour. The employee then left and continued working for the rest of the day. The employee further alleges that he was not compensated for the work that he did while off hours at the petitioner's house on the previous day. He also alleges that he "was not compensated, and did not take any leave time[,] when [he] went to [the petitioner's] house the second time" (NYSCEF, Document No. 14, at pp. 29-30).

In March 2025, the petitioner sought, among other things, to dismiss the misdemeanor complaint pursuant to CPL §§ 170.30 (1) (a) & (f), on grounds that it was "defective and legally and factually infirm." In June 2025, the City Court granted the motion over the objection of the District Attorney's Office. The City Court held that the factual statement in the misdemeanor complaint was "fundamentally flawed" because it did not allege that the petitioner knew that the employee was performing the repairs on City time or that the employee was using City property (NYSCEF, Document No. 16). The City Court further held that the facts alleged in the misdemeanor complaint did not permit "a finding that the [petitioner] 'commit[ed] an act relating to his office . . . constituting an unauthorized exercise of his official functions.'" The City Court explained its holding, as follows:

"[T]he Misdemeanor Complaint does not set forth factual allegations which constitute, even if true, the crime of Official Misconduct. Again, there are no factual allegations establishing a nexus between the alleged misconduct and the defendant's position as Commissioner of Public Works or his public duty or his oath of office. That is, the acts complained of do not relate to the office of Commissioner of Public Works and do not constitute an exercise of the defendant's official functions let alone an unauthorized exercise of those functions. Accordingly, the complaint charging the defendant with Official Misconduct must be dismissed" (NYSCEF, Document No. 16).

In July 2025, the petitioner's counsel sent a letter with an invoice for legal services to the City Attorney seeking payment based on the City's indemnification provisions in City Code § 9-1. This provision provided at the time, the following:

"The City Council of the City of Saratoga Springs agrees to provide a defense and indemnify its officers and employees in any state or federal legal action arising out of any alleged act or omission which occurred or allegedly occurred in the scope of official duty or public employment and hereby authorizes the purchase of liability and public officials' and employees' legal liability insurance to indemnify all lawfully elected and appointed officials of the City of Saratoga Springs, members of commissions and boards duly appointed by the City of Saratoga Springs and all employees and persons who perform services for the City of Saratoga Springs as volunteers, if such volunteers are under the direction and control of the City of Saratoga Springs" (emphasis added).^[FN2]

In response, the City Attorney disagreed that the City Code obligated the City to indemnify the petitioner for his legal fees from the criminal action. He informed the petitioner's counsel that a recent decision from Justice Walsh in Brandi v The City of Saratoga Springs, Index No. EF20242135 and EF20242696 held that the reimbursement of legal fees incurred in the defense of a criminal action was not authorized by the City Code. They City Attorney asserted, as follows:

"Section 19 of the Public Officers Law requires the State to reimburse legal fees incurred by or on behalf of a state employee in his defense of a criminal proceeding which occurred while such employee was acting within the scope of his public employment, upon his acquittal or upon the dismissal of the criminal charge. However, this law has not been adopted by the City of Saratoga Springs. Section 18 of the Public Officers Law, on the other hand, pertains to reimbursement of legal fees in civil actions.

The relevant City Code section as to reimbursement of legal fees for city employees is City Code section 9-1. Recently, Judge Walsh ruled [in Brandi] that said section must be interpreted to be identical in application as Section 18 of the Public Officers Law, citing Matter of Dreyer v City of Saratoga Springs, 43 AD3d 586 [3rd Dept. 2007]. Therefore, Judge Walsh ruled in the case before him that, in accordance with Attorney General Opinion No. 2003-16, 'It is clear that this interpretation of Public Officers Law § 18 does not permit the indemnification for legal counsel for criminal acts ." (NYSCEF, Document No. 20).

In August 2025, the City Council met for a regularly scheduled meeting and discussed the issue of the petitioner's request for indemnification for his legal fees. After a limited debate on the issue, the City Council voted 3-1 against indemnifying the petitioner for his legal fees. The minutes of the discussion reflect that at least one council member believed that indemnification was not authorized in this case because the matter involved a criminal action and the City "did not adopt Public Officer Law Section 19" (NYSCEF, Document No. 45).

The petitioner therefore commenced this hybrid action-proceeding against the City and the City Council in their official capacities, pursuant to CPLR Article 78 in the nature of mandamus, and alternatively for a declaratory judgment under CPLR 3001. The petitioner seeks to recover all his legal expenses from the criminal proceedings, as well as the legal expenses from this proceeding.

In their answer, the respondents have denied that they acted arbitrarily or capriciously, or that the determination lacked a rational basis (First Affirmative Defense). They further contend that Brandi and the doctrine of collateral estoppel prohibit them from authorizing the legal expense under City Code § 9-1 (Second Affirmative Defense). They further contend that the City Code relies on Public Officer Law § 18, which applies only to civil actions, and that the City has not adopted the provisions of Public Officer Law § 19, which apply to criminal actions (Third Affirmative Defense).

Contrary to the respondents' contention, Brandi does not prohibit the respondents from indemnifying the petitioner. Rather, Brandi involved a subpoena duces tecum issued by the Saratoga County Court seeking City records related to a criminal investigation of City employees. The petitioner in Brandi challenged the City Council decision to pay the cost of the personal legal expenses for two City commissioners, including the petitioner herein, and others in connection with the subpoena issued. There, no criminal allegations had been lodged at that time against these individuals, and the subpoena concerned merely an investigation seeking records (see NYSCEF Document No. 41).

In his decision, Justice Walsh relied upon an advisory opinion from the Attorney General (Opinion. No. 2003-16), which discussed a town's authority to pay defense costs under Public Officer's Law § 18 for town employees called as witnesses or being interviewed in connection [*3]with the prosecution of the town supervisor. The opinion concludes that the costs would not be authorized because the witnesses are not defending themselves in the proceeding and the case is against a different individual. The opinion states, as follows:

"A potential or actual witness who is represented by an attorney is not defending himself in an action or a proceeding. Furthermore, the statute authorizes defense in a civil action arising out of an act or omission by the employee himself. Here, the employees seek reimbursement in connection with a case against a town official, not against themselves. For these reasons, section 18 does not provide authorization for the Town to pay the legal expenses of the town employees called to assist in the criminal investigation of the town supervisor" (NYSCEF Document No. 41, citing Opinion. No. 2003-16).

Justice Walsh also noted that Public Officers Law §18 "does not permit the indemnification for legal counsel for criminal acts, as such would also constitute conduct outside the scope of employment." Justice Walsh further noted that the subject expenses were approved prior to the lodging of any criminal charges and that they were therefore speculative in nature. While alternative grounds existed in Brandi to nullify the City's Council's actions, this Court nevertheless reads Brandi as standing for the proposition that City Code § 9-1 did not require the City to pay for the legal expenses of witnesses participating in an investigation, even if criminal charges were later filed against those witnesses.^[FN3]

Unlike Brandi, the legal fees incurred by the petitioner in this case arise from a criminal action being filed against the petitioner. The petitioner further incurred such expenses in defending himself in these criminal proceedings, as they were directly against him. In addition, while there is a prohibition against permitting indemnification of criminal acts, the criminal complaint against the petitioner was dismissed. As such, there has been no finding by the City Court that the petitioner committed a criminal act. The petitioner therefore cannot be barred from seeking to recover his legal fees from the criminal prosecution based solely on the Brandi decision, which is factually distinct.

Further, the Court does not consider Brandi's passing reference to the Dreyer case as precluding the relief sought by the petitioner in this case (see Matter of Dreyer v City of Saratoga Springs, 43 AD3d 586 [3d Dept 2007]). Dreyer found Saratoga Springs City Code § 9-1 and Public Officers Law § 18 to be "identical" in language for the issue presented in that case (see id. at 587). However, the issue presented in Dreyer concerned whether the City Council properly refused to provide a defense in two federal civil actions filed against a municipal officer because the City Council viewed her conduct, as alleged in the complaint, as outside the scope of her employment. There, Supreme Court (Justice Nolan), in interpreting City Code § 9-1, applied case law interpreting Public Officers Law § 18 and ruled in favor of the petitioner.

On the appeal in Dreyer, a dispute arose over whether the City had adopted the provisions of Public Officers Law § 18, as the petitioner in that case had alleged in her amended [*4]petition.^[FN4] The City asserted that the Supreme Court further erred in determining that it did not contest this issue earlier in the proceedings. The appellate court concluded that these "issues [were] rendered academic" because the City Code and Section 18 used the same language relevant to resolving the issue in dispute, specifically whether the action arose out of "any alleged act or omission which occurred or allegedly occurred" in the scope of official duty or public employment (Matter of Dreyer, 43 AD3d at 587 [emphasis in original]). Dreyer therefore did not hold that City Code § 9-1 adopted Section 18. On the contrary, Dreyer held that this issue was unnecessary to resolve. Accordingly, the respondents' Second Affirmative Defense, which is based on Brandi and Dreyer, is DISMISSED.

Having resolved the parties' dispute over Brandi and Dreyer, the Court will now turn its attention to determine whether City Code § 9-1 authorizes the payment of legal expenses for a municipal officer who is a defendant in a criminal action. The starting point for this analysis is set forth in the same advisory opinion relied upon by Justice Walsh in Brandi (see 2003 NY Op [Inf] Atty Gen. 16, 2003 NY AG Lexis 18). In the advisory opinion, the Attorney General's Office explained that Public Officers Law § 18 authorizes a municipality to pay the defense expenses of a municipal officer in only "civil" actions. As such, by its plain language, this provision "does not authorize the reimbursement of attorney's fees incurred by [a municipal officer in] defending himself against criminal charges" (id., citing Zimmer v Town of Brookhaven, 247 AD2d 109, 113 [2d Dept 1998]). Notwithstanding, the Attorney General's opinion explained that a municipality may provide greater benefits to its officers than those set forth in Public Officers Law § 18, and that a municipality may under certain circumstances agree to reimburse legal fees for municipal officers defending against criminal charges (see id.). A municipality, for example, may provide for the reimbursement of legal expenses in a criminal action by supplementing the provisions of Public Officers Law § 18 or, alternatively, by agreeing to indemnify and defend pursuant to its own local enactment (see id.; see also Hennessy v Robinson, 985 F Supp 283, 286-287 [NDNY 1997]).

The confusion in this case exists because Public Officers Law § 18 is optional and applies only if the City Council "agreed by the adoption of local law, by-law, resolution, rule or regulation to confer the benefits of this section upon its employees and to be held liable for the costs incurred under [the] provisions [of Section 18]" (Public Officers Law § 18[2][a]). Moreover, the City Council had the option to provide greater benefits to its municipal officers than those offered under Section 18 or, alternatively, could have simply proceeded with its own local enactment to provide different benefits.

The respondents contend that the City Council merely adopted City Code § 9-1 (without the greater benefit of indemnifying for defense costs in criminal actions) because the initial resolution for this provision refers to Public Officers Law § 18 in a whereas clause. However, [*5]the Court is not persuaded that the mere reference to Section 18 in a whereas clause was sufficient to adopt these provisions. The resolution and the City Code, for example, do not contain any of the procedures set forth in Public Officers Law § 18, making it uncertain whether the City Council intended to rely on them in applying Section 9-1 of the City Code. In addition, the language in the resolution and City Code is different from Public Officers Law § 18. Whereas Section 18 is limited to only "civil" actions, the resolution and City Code refer to "any state or federal legal action" without expressly limiting their application to only civil actions.

The Court finds the case of Hennessy v Robinson, 985 F Supp 283 (NDNY 1997) to be particularly instructive in deciding whether the City Council merely adopted Public Officers Law § 18. There, an attorney sought an order pursuant to New York Public Officers Law § 18(3)(c) setting reasonable attorney's fees to be paid by the defendant county. The attorney made a strong argument that the county legislature in passing the resolution at issue intended to adopt Section 18. However, the court held that even if the county legislature intended to adopt Section 18, it failed. The court therefore concluded that the provisions of the local resolution controlled the right to seek reimbursement for attorneys' fees and that Section 18 did not apply, because the local resolution did not include any specific language adopting Section 18 (see id. at 287-288). The court concluded, as follows:

"If the County desired to adopt § 18, it was, and still is, very simple - pass a resolution which states: 'The County of Oneida adopts Public Officers Law § 18 in order to confer the benefits of the section upon its employees.' By failing to enact a resolution with that or similar language, the County Legislature failed to adopt § 18 even if it intended to do so. Accordingly, the County Legislature, either knowingly or unknowingly, elected to provide for indemnification solely under local enactment (Resolution 102), and not pursuant to § 18" (id. at 288).

Here, the only real difference between this case and Hennessy is that the initial resolution in this case refers to Public Officers Law § 18 in a whereas clause. If the mere reference to Section 18 in the resolution did not by itself result in the adoption of the provisions of Section 18 (as the resolution did not expressly say that it was adopting Section 18), the Court would be left with the local enactment, and the "civil action" limitation in Section 18 would be irrelevant. Under such circumstances, the City Code would be applicable to criminal actions by its plain language, i.e., "any" action. On the other hand, if the mere reference to Section 18 in the resolution was sufficient to permit the adoption of the provisions of Section 18 (which is a reasonable proposition from a practical perspective), the Court would find that the language used in the City Code is broader and therefore intended to supplement those provisions of Section 18 by including indemnity and defense for "any" action, including criminal actions.

Either way, the Court finds that the evidence presented leads to the same inescapable conclusion: the City Council did not merely adopt Section 18 or limit the application of the indemnity provision to only civil actions. Rather, the Court finds that the City Council either elected to provide for indemnification solely under local enactment (City Code § 9-1), and not pursuant to Section 18, or alternatively, that the City Council elected to provide the benefits under Section 18 and supplement them by expanding the coverage to include criminal actions. Moreover, the Court finds the absence of any reference to Public Officers Law § 19 to be largely irrelevant for consideration on these issues, given that Section 19 is limited to state employees. As such, the resolution may not have contained any reference to Section 19 for this reason alone. Accordingly, the respondents' Third Affirmative Defense, which alleges that Section 9-1 of the City Code offers the same exact benefits as Section 18 of the Public Officers Law, is DISMISSED.

For these reasons, the Court finds that the respondents mistakenly assumed that City Code § 9-1 applied only to civil actions. As this erroneous assumption affected the City Attorney's opinion and the City Council's vote, the Court declines to address any other issues that may be in dispute between the parties regarding the application of City Code § 9-1, as they are not ripe for review in light of this decision and may become academic if indemnity is ultimately provided.

The Court grants the petition to the extent of directing the respondents within 60 days to reconsider their determinations in light of this decision and issue a new determination without unreasonable delay. In the event that the respondents again deny the petitioner's request for reimbursement or grant it only in part, the petitioner may file a new action to challenge the determination.

As a final point, the petitioner seeks to be reimbursed by the respondents for counsel fees in bringing this proceeding. This issue was similarly raised and decided by Justice Nolan in Dreyer. There, Justice Nolan reiterated the "general rule in New York that attorney's fees are 'incidents of litigation and a prevailing party may not collect them from the loser unless an award is authorized by agreement between the parties, statute or court rule'" (Dreyer, 21 Misc 3d 1108[A] [Sup Ct, Saratoga County 2006], citing Hooper v AGS Computers, 74 NY2d 487, 491 [1989]). Justice Nolan further held that "Public Officers Law § 18 permits a successful petitioner to recover attorney's fees incurred in defending a third-party action, but it does not allow an award of fees incurred in the proceeding to compel compliance with the statute" (id. [citing cases]).

While the language of City Code § 9-1 is different from Public Officers Law § 18, the petitioner has not cited any case law permitting the recovery of attorney's fees incurred by an employee (state or municipal) in seeking to compel compliance with Public Officers Law §§ 18 or 19, or any similar local enactment. Absent such authority, the Court finds that the petitioner is not entitled to recover an award of fees against the municipal respondents under the City Code for the expenses incurred to compel the respondents' compliance with Section 9-1 of the City Code. Indeed, the City Code does not contain any such express provision, and the interpretation advocated by the petitioner extends well beyond the intent of the provisions at issue.

While the Court is not unsympathetic to an employee who alleges that he or she was unlawfully prosecuted for political reasons, City Code § 9-1 does not address or even contemplate such a scenario. Rather, the minutes regarding the initial resolution indicate that the resolution was passed to obtain insurance. While other reasons for providing defense and indemnity are also stated in the resolution, such as to promote and maintain confidence and good morale among the City's current officials and to continue to secure good people to serve as officers in the future, these are the same reasons for providing benefits under Section 18, which does not authorize such litigation fees to compel compliance. Accordingly, the petitioner's request for the reimbursement of his legal fees incurred in connection with this proceeding is DENIED.

The Court has considered the parties' remaining contentions and finds them (as discussed above) to be either academic or premature for this Court to adjudicate at this time in light of this decision.

IT IS HEREBY ORDERED that the petition is GRANTED to the extent set forth above. The vote denying the petitioner indemnification is declared null and void and the respondents are directed within 60 days to reconsider their determinations in light of this decision and proceed with issuing a new decision without unreasonable delay. The Court takes no position at this time as to whether the respondents should approve the payment in this case and, if so, whether the total amount of the fees requested is reasonable.

IT IS FURTHER ORDERED, that the respondents' Second and Third Affirmative Defenses are DISMISSED.

IT IS FURTHER ADJUDICATED AND DECLARED, that Brandi does not prohibit the respondents from approving the payment of the legal expenses incurred by the petitioner in defending against the criminal charges filed against him.

IT IS FURTHER ADJUDICATED AND DECLARED, that the City Code § 9-1 (as it existed in 2024 and 2025) is not limited to only civil actions.

IT IS FURTHER ORDERED, that the petitioner's request to recover the legal expenses associated with commencing this proceedings is DENIED.

IT IS FURTHER ORDERED, that the respondents' motion seeking to strike certain allegations in the petition has been rendered academic in light of this decision and is therefore DENIED as moot.

This shall constitute the Decision & Order of the Court. No costs are awarded to any party. The Court is hereby uploading the original into the NYSCEF system for filing and entry by the County Clerk. The Court further directs the parties to serve notice of entry in accordance with the Local Protocols for Electronic Filing for Saratoga County.