Honorable Gordon M. Ambach Commissioner Education Department

Your counsel has asked whether persons who are not currently members of the State Board for Dentistry and who are paid on a per diem basis to serve as examiners for the practical examination component of the professional licensing examination in dentistry are employees of the State within the meaning of section 17 of the Public Officers Law.

Title 8 of the Education Law regulates professional licensing in New York State. Each professional board has the option of conducting oral and practical examinations, in addition to mandatory written examinations, as a requirement for licensure (Education Law, § 6508[2]). To qualify for a dentist's license, each applicant must pass an examination satisfactory to the State Board for Dentistry (Education Law, §6604[4]). You informed us that the examination currently includes a practical examination component. Your letter of inquiry states that, in order to have enough examiners to conduct the practical examination, the State Education Department employs members of the State Board for Dentistry, former Board members, and other licensed dentists. All examiners are paid on a per diem basis for their services.

Section 17 of the Public Officers Law provides for the defense and indemnification by the State of State officers and employees for acts or omissions committed in the performance of their duties. Section 17 provides that:

"The term employee shall include a former employee, his estate or judicially appointed personal representative and persons who assist the education department or the department of health as consultants or expert witnesses in the investigation or prosecution of alleged professional misconduct, licensure matters, restoration proceedings, or criminal prosecutions for unauthorized practice pursuant to title eight of the education law or title II-A of the public health law." (Public Officers Law, § 17[1][a].)

Examiners who are not currently Dentistry Board members are acting as consultants — i.e., giving professional services in their area of expertise — when they assist the Education Department in conducting the practical examination. Since the practical examination is a requirement for obtaining a license, we believe the examination is a licensure matter within the meaning of section 17. Therefore, we believe that these examiners are employees within the meaning of section 17 and are entitled to defense and indemnification by the State in any legal actions arising from their acts or omissions while serving as examiners (Public Officers Law, § 17[2][a] and [3][a]).

We conclude that examiners who are paid on a per diem basis by the State Education Department to conduct the practical examination component of the professional licensing examination in dentistry are employees of the State within the meaning of section 17 of the Public Officers Law.