143 A.D.2d 535 (1988)

In the Matter of John H. Lamb, Appellant, v. Westmoreland Central School District, Respondent

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

September 27, 1988

Order unanimously affirmed without costs.


Petitioner, a teacher employed by respondent school district, commenced a CPLR article 78 proceeding seeking to recover legal fees expended to defend himself successfully against a criminal charge of sexual abuse brought by one of his students. Supreme Court properly dismissed the petition. There is statutory authority for a school district to provide a teacher with a defense in a criminal proceeding only if the criminal action or proceeding arises "out of disciplinary action taken against any pupil" (Education Law § 3028). Petitioner concedes that this charge did not arise out of any disciplinary action he took against this student (cf., Matter of Cutler v Poughkeepsie City School Dist., 73 A.D.2d 967). Absent statutory authority, a public employer is not required to pay attorney's fees for its employees to defend legal actions even if the actions arise from acts performed in their official capacity. To do so would be to make a gift of public funds for a private purpose, explicitly prohibited by NY Constitution, article VII, § 8 (see, Corning v Village of Laurel Hollow, 48 N.Y.2d 348; Matter of Security & Law Enforcement Employees [County of Albany], 96 A.D.2d 976, 978, affd 61 N.Y.2d 965; Comins v County of Delaware, 66 A.D.2d 931, 932).


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