Could South Miami pay the legal fees of a winning commission candidate named in a lawsuit contesting the election?

Plain-English summary

South Miami asked whether it could pay the legal fees of an elected city commissioner who had to be joined as an indispensable party in a lawsuit contesting the election. The Attorney General's office concluded that the city could not spend public funds on that defense.

Florida election law allowed specified candidates, voters, and taxpayers to challenge an election result in circuit court. When the contest concerned a candidate's election or nomination, the successful candidate had to be included in the case under section 102.168(4), Florida Statutes.

That mandatory party status did not turn the candidate's defense into a municipal expense. The letter followed Attorney General Opinion 2001-53, which had rejected county payment of a successful candidate's fees even when alleged wrongdoing concerned the county canvassing board rather than the candidate.

The opinion distinguished an election defense from litigation arising from a public officer's performance of official duties while serving a public purpose. The office found no intervening statutory amendment or court decision changing its earlier conclusion.

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.

Who this opinion addressed in 2008

Successful municipal candidates

Being a required party to an election contest did not entitle the candidate to a city-funded legal defense under the opinion.

City attorneys and finance officials

The letter treated the candidate's defense as outside the category of public expenses incurred defending official conduct undertaken for a public purpose.

Election-contest litigants

The successful candidate still had to be joined under section 102.168(4), Florida Statutes. The opinion addressed who could pay that candidate's fees, not whether the candidate belonged in the case.

Common questions

Q: Why was the winning candidate an indispensable party?
A: Florida election-contest law expressly required the successful candidate to be joined when the suit challenged a candidate's election or nomination.

Q: Did mandatory joinder make the city responsible for fees?
A: No. The opinion said the city could not use public money for the candidate's defense on that basis.

Q: Did it matter whether the alleged impropriety involved the candidate or canvassing board?
A: No. The earlier opinion applied regardless of which of them was accused of wrongdoing in the election process.

Q: When can public money pay an officer's defense?
A: The cases discussed a different setting, litigation arising from performance of official duties while serving a public purpose. The letter did not place an election-contest defense in that category.

Background and statutory framework

Section 102.168 (1), Florida Statutes, authorized election contests by an unsuccessful candidate, a qualified elector in the election, or a taxpayer. Section 102.168(4), Florida Statutes, made the successful candidate an indispensable party.

The letter relied on Attorney General Opinions 2001-53 and 77-87. It cited Markham v. State, Department of Revenue, Thornber v. City of Fort Walton Beach, and Maloy v. Board of County Commissioners of Leon County among the authorities addressing public payment of officials' legal fees and the public-purpose limitation.

Citations and references

Statutes:

• section 102.168(4), Florida Statutes
• Section 102.168 (1), Florida Statutes

Cases:

• Markham v. State, Department of Revenue, 298 So. 2d 210 (Fla. 1st DCA 1974)
• Thornber v. City of Fort Walton Beach, 568 So. 2d 914 (Fla. 1990)
• Maloy v. Board of County Commissioners of Leon County, 946 So. 2d 1260 (Fla. 1st DCA 2007)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/legal-fees-for-election-contest
• Official print view: https://www.myfloridalegal.com/print/pdf/node/8255

Original opinion text

Mr. Luis R. Figueredo

Attorney for the City of South Miami

18001 Old Cutler Road, Suite 556

Miami, Florida 33157

Dear Mr. Figueredo:

You have asked whether the City of South Miami may pay the legal fees of an elected city commissioner who was named as an indispensable party pursuant to section 102.168(4), Florida Statutes, in a suit contesting the election.

Section 102.168 (1), Florida Statutes, states that the certification of any election, the nomination of any person to office, or the result of any question submitted by referendum may be contested in the circuit court by any unsuccessful candidate for the office or by any elector qualified to vote in the election related to the candidacy, or by any taxpayer. The successful candidate is an indispensable party to any action contesting the election or nomination of a candidate.[1]

In Attorney General Opinion 2001-53, this office was asked whether county funds could be used to pay the legal fees of a successful political candidate who was an indispensable party to a suit contesting the results of an election, when the canvassing board had been charged with failure to carry out its statutory duties. Citing to a previous opinion of this office, Attorney General Opinion 77-87, and several cases[2] addressing the expenditure of public funds for the defense of an officer, it was concluded that funds may not be used to pay for the defense of a successful candidate in an election contest suit, regardless of whether the charges arise from alleged improprieties by the county canvassing board or by the successful candidate.

There have been no subsequent amendments to section 102.168, Florida Statutes, or judicial determinations that would alter the conclusions reached in Attorney General 2001-53. Accordingly, it would appear that the City of South Miami may not expend public funds for the defense of the successful candidate for the city commission who is an indispensable party to a suit contesting the results of the election.

I trust that these informal comments will be of assistance to you in resolving this matter.

Sincerely,

Lagran Saunders

Assistant Attorney General

ALS/tsh

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[1] Section 102.168(4), Fla. Stat.

[2] See Markham v. State, Department of Revenue, 298 So. 2d 210 (Fla. 1st DCA 1974); Thornber v. City of Fort Walton Beach, 568 So. 2d 914 (Fla. 1990); Lomelo v. City of Sunrise, 423 So. 2d 974, 976 (Fla. 4th DCA 1982) (public funds may not be expended for other than public purposes; public officers are entitled to a defense at the expense of the public in a law suit arising from the performance of the officer's official duties and while serving a public purpose); Nuzum v. Valdes, 407 So. 2d 277, 279 (Fla. 3rd DCA 1981) (when a public officer is charged with misconduct while performing his official duties and while serving a public purpose, public has a primary interest in the controversy and should pay the reasonable and necessary legal fees incurred by the public officer in successfully defending against unfounded allegations of official misconduct); Maloy v. Board of County Commissioners of Leon County, 946 So. 2d 1260 (Fla. 1st DCA 2007).