Does a Florida city have to pay a city commissioner's attorney fees after he is found guilty of an ethics violation?

Currency note

This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Plain-English summary

A majority of the Opa-Locka City Commission asked the Attorney General's office whether the city had to pay the attorney fees of a city commissioner who was found guilty of an ethical violation by the Miami-Dade County Ethics Commission.

The opinion explained that Florida courts have long recognized a common-law right of public officials to legal representation at public expense when they are defending official-duty misconduct charges that serve a public purpose, a right that exists independent of any statute, ordinance, or charter. But that right, as described in the cited case law, was tied to the defense being successful. The opinion noted it was not aware of any decision obligating a city to pay the legal expenses of an officer who was found guilty of misconduct. It also pointed out that section 112.08(2)(a), Florida Statutes, let municipalities provide legal expense insurance to officers and employees as part of their compensation, though the office had no information on whether Opa-Locka had purchased such coverage.

Background and analysis (as of 2008)

The opinion traced the public-expense-defense doctrine through several Florida appellate decisions. In Ellison v. Reid, the court held that a public officer who successfully defended against a misconduct complaint before the Florida Commission on Ethics was entitled to reimbursement, reasoning that the public has a primary interest in protecting officials from unfounded allegations of official misconduct. Chavez v. City of Tampa reinforced that the obligation to pay only arises when the conduct at issue occurred in connection with the officer's official duties and served a public purpose; in that case, a council member's vote on her own zoning matter did not qualify because it advanced a private interest rather than a public one. Thornber v. City of Fort Walton Beach set out a two-part test: the litigation must (1) arise out of or in connection with the performance of official duties, and (2) serve a public purpose.

The opinion observed that both prongs of that test must be satisfied, and that determining whether they are satisfied is a decision for the paying agency itself, not the Attorney General's office. Critically, the opinion cited its own prior Attorney General Opinion 91-58 for the proposition that the obligation to pay defense costs depends on the defense being successful, and stated it knew of no authority obligating a city to cover legal expenses for an officer found guilty of misconduct.

Citations and references

Statutes (as they stood in 2008):

• s. 112.08(2)(a), Florida Statutes, authorizing municipalities to provide legal expense insurance to officers and employees as part of compensation

Cases:

• Ellison v. Reid, 397 So. 2d 352 (Fla. 1st DCA 1981), public officer entitled to fee reimbursement after successfully defending an ethics complaint
• Chavez v. City of Tampa, 560 So. 2d 1214 (Fla. 2nd DCA 1990), reimbursement unavailable where the officer's conduct served a private, not public, purpose
• Thornber v. City of Fort Walton Beach, 568 So. 2d 914 (Fla. 1990), two-part test for public-expense legal defense
• Lomelo v. City of Sunrise, 423 So. 2d 974 (Fla. 4th DCA 1982), the common-law right is "not subject to the discretion of the keepers of the city coffers"
• Maloy v. Board of County Commissioners of Leon County, 946 So. 2d 1260 (Fla. 1st DCA 2007), interplay of sovereign immunity and the public-expense defense right
• Branca v. City of Miramar, 602 So. 2d 1374 (Fla. 4th DCA 1992), former mayor entitled to public-expense representation in a pension dispute he had a hand in creating

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/attorney-fees-unsuccessful-ethics-defense
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8243

Original opinion text

The Honorable Timothy Holmes

Commissioner, City of Opa-Locka

780 Fisherman Street

Opa-Locka, Florida 33054

Dear Commissioner Holmes:

You ask on behalf of a majority of the members of the Opa-Locka City Commission whether the city is responsible for the attorney fees for a city commissioner who was found guilty of an ethical violation by the Miami-Dade County Ethics Commission.

The courts of this state have recognized a common right of public officials to legal representation at public expense to defend themselves against charges arising from the performance of their official duties while serving a public purpose.[1] Such an obligation arises independent of statute, ordinance, or charter.[2] In Ellison v. Reid,[3] the court discussed the common law principles underlying this rule:

"There is no doubt a valuable public purpose is served in protecting the effective operation and maintenance of the administration of a public office. If a public officer is charged with misconduct while performing his official duties and while serving a public purpose, the public has a primary interest in such controversy and should pay the reasonable and necessary legal fees incurred by the public officer in successfully defending against unfounded allegations of official misconduct." (e.s.)

Such a right is not limited to a public official's defense in civil or criminal litigation. The issue in Ellison was whether a public official was entitled to reimbursement for legal fees incurred in successfully defending himself against a complaint of official misconduct filed with the Florida Commission on Ethics. The right of public officials to a defense at public expense in defending charges of official misconduct filed with the Commission on Ethics was again recognized in Chavez v. City of Tampa,[4] in which the court stated that this obligation arises only when the conduct arises out of, or in connection with, the performance of the officer's official duties and while serving a public purpose.[5]

In Thornber v. City of Fort Walton Beach,[6] the Court upheld the public officer's right to reimbursement costs in successfully defending against a recall petition which arose out of the officer's alleged malfeasance in meeting in violation of the Government in the Sunshine Law, section 286.011, Florida Statutes, and in subsequently voting on the issues at a later public meeting. The Court recognized the principle that public officials are entitled to legal representation at public expense provided the litigation:

"1) arises out of or in connection with the performance of their official duties and

2) serves a public purpose."[7]

Both prongs of the test must be met. This office has consistently stated that the determination that the test has been satisfied is one which must be made by the public agency responsible for such reimbursement and not by this office.[8] As this office noted in Attorney General Opinion 91-58, however, the public agency's responsibility to pay such defense expenses is dependent upon the outcome of the defense being successful. As stated therein, this office is not aware of any decision which would obligate the city to pay the legal expenses of its officers found guilty of misconduct. However, section 112.08(2)(a), Florida Statutes, authorizes municipalities to provide their officers and employees, as part of their compensation, with legal expense insurance. This office has no information as to whether the city has purchased such insurance coverage for its officers and if so, what are the terms of such coverage.

You may wish to discuss this matter further with the city attorney. I hope, however, that the above informal comments may be of assistance in resolving this matter.

Sincerely,

Joslyn Wilson

Assistant Attorney General

JW/t

[1] See, e.g., Markham v. State, Department of Revenue, 298 So. 2d 210 (Fla. 1st DCA 1974); Ferrera v. Caves, 475 So. 2d 1295 (Fla. 4th DCA 1985). And see Maloy v. Board of County Commissioners of Leon County, 946 So. 2d 1260 (Fla. 1st DCA 2007) (analyzing interplay of doctrine of sovereign immunity and common law right of public officials to receive legal representation at taxpayer expense in defending themselves against litigation arising out of their official duties and while serving a public purpose).

[2] See Lomelo v. City of Sunrise, 423 So. 2d 974 (Fla. 4th DCA 1982), petition for review dismissed, 431 So. 2d 988 (Fla. 1983), stating that this common law right "is not subject to the discretion of the keepers of the city coffers."

[3] 397 So. 2d 352, 354 (Fla. 1st DCA 1981).

[4] 560 So. 2d 1214 (Fla. 2nd DCA 1990).

[5] In Chavez, however, the court held that reimbursement of a city council member's legal expenses in successfully defending a charge of unethical conduct before the Florida Commission on Ethics was not authorized. Although the charges against her arose from her vote on the city council, the court determined that her vote did not serve a "public purpose" but rather directly advanced her own private interests, i.e., voting on her petition for an alcoholic beverage zoning classification at business premises she had leased.

[6] 568 So.2d 914, 917 (Fla. 1990).

[7] And see Branca v. City of Miramar, 602 So. 2d 1374 (Fla. 4th DCA 1992), concluding that former mayor was entitled to representation at public expense in city's action seeking to terminate his pension benefits following its repeal of ordinance authorizing such benefits, where mayor had initiated process of drafting ordinance.

[8] See, e.g., Ops. Att'y Gen. Fla. 91-58 (1991), 91-59 (1991), and 90-74 (1990).