                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 9, 2015                     519090
________________________________

In the Matter of PAUL W.
   MOSSMAN, as Commissioner of
   Social Services of Columbia
   County,
                    Respondent,
      v

COUNTY OF COLUMBIA,
                      Appellant.

(Proceeding No. 1.)
________________________________            MEMORANDUM AND ORDER

In the Matter of PAUL W.
   MOSSMAN, as Commissioner of
   Social Services of Columbia
   County,
                    Respondent,
      v

COUNTY OF COLUMBIA,
                      Appellant.

(Proceeding No. 2.)
________________________________


Calendar Date:   February 20, 2015

Before:   Lahtinen, J.P., Garry, Rose and Devine, JJ.

                             __________


      David E. Woodin, LLC, Catskill (David W. Woodin of
counsel), for appellant.

      William J. Better, PC, Kinderhook (N. Daniel Reeder of
counsel), for respondent.

                             __________
                              -2-                519090

Devine, J.

      Appeals (1) from a judgment of the Supreme Court (Zwack,
J.), entered December 27, 2013 in Columbia County, which granted
petitioner's application, in combined proceeding No. 1 pursuant
to CPLR article 78 and action for declaratory judgment, to, among
other things, annul respondent's determination that petitioner
was not entitled to a legal defense pursuant to Public Officers
Law § 18 in connection with a certain grand jury proceeding, and
(2) from a judgment of said court, entered April 29, 2014 in
Columbia County, which granted petitioner's application, in
combined proceeding No. 2 pursuant to CPLR article 78 and action
for declaratory judgment, to, among other things, direct
respondent to provide such a legal defense in connection with a
subsequent grand jury proceeding.

      In March 2013, the Columbia County District Attorney issued
a subpoena demanding that petitioner appear before a grand jury
with various documents related to the official actions of
Columbia County Department of Social Services employees.
Petitioner thereafter sought to retain outside counsel and
requested that respondent indemnify him pursuant to Public
Officers Law § 18 and Columbia County Code § 36-1.   Respondent
declined to do so, asserting that those provisions did not apply
to "potential criminal matters." Petitioner commenced a combined
CPLR article 78 proceeding and declaratory judgment action
(proceeding No. 1) to challenge the determination and obtain a
declaration that respondent was obliged to indemnify him for his
legal expenses. Supreme Court granted that relief in a December
2013 judgment.

      The Columbia County District Attorney served a similar
subpoena in March 2014 and, after respondent again refused to
indemnify petitioner for his legal expenses, he commenced a
second combined CPLR article 78 proceeding and declaratory
judgment action (proceeding No. 2). Supreme Court, relying upon
its rationale in proceeding No. 1, issued a judgment in April
2014 that granted the petition. Respondent now appeals from both
the December 2013 and April 2014 judgments.
                              -3-                519090

      As respondent has adopted Public Officers Law § 18, it is
obliged to "provide for the defense of [an] employee in any civil
action or proceeding, state or federal, arising out of any
alleged act or omission which occurred or allegedly occurred
while the employee was acting within the scope of his [or her]
public employment or duties" (Public Officers Law § 18 [3] [a]).
Moreover, because a conflict of interest prevented the Columbia
County Attorney from representing petitioner, petitioner was
entitled to representation "by private counsel of his choice"
(Public Officers Law § 18 [3] [b]; see County Law § 501 [2]).
Petitioner satisfied the notice requirements of Public Officers
Law § 18 and is an employee of respondent, and the subpoenas
clearly stem from actions undertaken in the course of his public
duties. Respondent contends, however, that the grand jury
proceeding did not constitute a "civil action or proceeding" for
the purposes of Public Officers Law § 18.

      We disagree and affirm. Respondent failed to demonstrate
what the object of the grand jury proceeding was, readily
admitting that the District Attorney had not made his "intentions
[known] in relation to the potential for criminal charges."
While grand juries may indict a person for a criminal offense
(see CPL 1.20 [18]; 190.60 [1]), they are also empowered "to make
presentments as to noncriminal misconduct or neglect by public
officers and employees" (Matter of Report of 1966 Oct. Monroe
County Grand Jury, 27 AD2d 980, 980 [1967]; see CPL 190.05,
190.55 [1]; 190.60 [5]; 190.85 [1]; Matter of Grand Jury of
County of Erie, Second Report, Nov., 26 NY2d 200, 203-204
[1970]).1 Thus, because there is no indication that criminal


    1
        Respondent points out that the subpoenas at issue seek
information regarding "all of [petitioner's] employees and
subordinates," and claims that those individuals could not be the
target of a grand jury report such as to entitle them to a
defense under Public Officers Law § 18. Contrary to respondent's
contention, the statutory power to report on the noncriminal
misconduct of any public servant bears no connection to the
separate constitutional right of a grand jury to investigate and
indict public officers (compare CPL 190.85 [1], Penal Law § 10.00
[15], and Matter of Grand Jury of County of Erie, Second Report,
                              -4-                  519090

charges are actually being contemplated, Supreme Court properly
"reject[ed] respondent's claim that because the [g]rand [j]ury
proceeding[s] could have resulted in criminal charges against
petitioner, the proceeding[s] [were] not civil in nature" (Matter
of Hunt v Hamilton County, 235 AD2d 758, 760 [1997]). "Any other
holding would defeat the clear intent of the statute, which
insulates public employees from litigation expenses arising out
of their employment" (Matter of Hogue v Zoning Bd. of Appeals of
Vil. of Canajoharie, 239 AD2d 807, 808 [1997] [citation
omitted]).

      Respondent's remaining contentions, to the extent they are
properly before us, have been examined and found to be lacking in
merit.

     Lahtinen, J.P., Garry and Rose, JJ., concur.



     ORDERED that the judgments are affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court




Nov., 26 NY2d at 203-204, with NY Const, art I, § 6, and Matter
of Wood v Hughes, 9 NY2d 144, 153-154 [1961]).
