Can an Escambia County commissioner have his legal fees paid from county funds when defending a defamation lawsuit over Facebook posts of pre-election emails?

Plain-English summary

A sitting Escambia County commissioner had been sued for defamation by a former political opponent. The lawsuit was based on emails the commissioner sent to a third party between November 2013 and September 2014, while he was a private citizen and a candidate. After the commissioner won his November 2014 election, the third-party recipient posted the emails on Facebook. The plaintiff sued the commissioner, alleging the emails were false and defamatory.

The Board of County Commissioners asked whether it could authorize county funds to pay the commissioner's legal-defense costs in the suit, even though the statutory authority for indemnification (§ 111.07) didn't apply because the conduct happened before the commissioner took office.

The AG analyzed the question under Florida's common-law doctrine for indemnifying public officials. Under Thornber v. City of Ft. Walton Beach, 568 So. 2d 914 (Fla. 1990), reimbursement is available only when (1) the official has successfully defended the case, (2) the challenged acts arose from public-duty performance and served a public purpose, (3) the substance of the litigation is of interest to the local government's administration, and (4) the local government authorized the challenged acts. The Florida Constitution adds a hard floor: public funds may only be expended for a public purpose, not a private one (Art. VII, § 1).

The AG ran the four Thornber factors and concluded that on the alleged facts, none was facially satisfied. The litigation hadn't concluded successfully (it was still pending). The conduct (private emails accusing a former political opponent of marital infidelity) didn't arise from public duty. The conduct didn't serve a public purpose; defaming political opponents isn't an official function. The county's business wasn't implicated. And the County Commissioners' Technology Policy, adopted in 2009, expressly prohibited commissioners from using private email accounts for county business and from discussing county business on Facebook, so any argument that the conduct was "county business" would actually show it was prohibited, not authorized.

The opinion is informal and explicitly leaves the final call to the Board. The AG's office can't decide a fact-intensive question about whether a particular set of statements served a public purpose; only the Board, with the full evidentiary record, can.

Currency note

This opinion was issued in 2017. 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.

Common questions

Q: When could a Florida public official have legal fees paid from public funds for defending a personal lawsuit?
A: Either under a specific statute (§ 111.07, for actions arising from acts within the scope of employment), or under the common-law Thornber doctrine. Both require a tight fit between the challenged conduct and a public purpose.

Q: What were the four Thornber factors?
A: (1) Successful defense (the official prevailed); (2) the challenged acts arose from the official's performance of public duties and served a public purpose; (3) the substance of the litigation was of interest to the administration of the prospective payor's business; and (4) the prospective payor authorized the challenged acts.

Q: Did the timing of the conduct matter?
A: Yes. The court in Markham v. State expressly rejected the argument that "although the election contest was personal prior to his assuming office,…it thereupon acquired a public purpose." Pre-election conduct generally cannot be retroactively converted into public-purpose conduct.

Q: What if a third party (not the official) posted the material online?
A: That didn't change the analysis here. The underlying acts (the emails themselves) were the predicate. The Facebook posting by a third party didn't make the emails "arise" from public duties.

Q: How did the county's technology policy factor in?
A: The policy prohibited using private email for county business and discussing county business on Facebook. So any argument that the emails were "county business" would have shown a policy violation, not authorization. Either way, factor 4 (county authorization) failed.

Q: Could the AG have ordered the Board to deny reimbursement?
A: No. The AG provided informal guidance on the legal framework. The factual determination of whether the Thornber factors were met was the Board's call, made on the full evidentiary record.

Background and statutory framework

Florida public officials defend personal litigation arising from alleged misconduct in office through two channels. The first is statutory: § 111.07 lets a county or municipality provide an attorney for civil actions arising out of and in the scope of an officer's employment. The second is common law, articulated in Thornber and refined by Maloy, Chavez, Ellison, and the Peck/Williams/Markham line.

The animating concern in Thornber is the chilling effect: "[t]o deny a public official representation for acts purportedly arising from the performance of his official duties would have a chilling effect upon the proper performance of his duties and the diligent representation of the public interest." But that concern only kicks in when the conduct actually arises from public duties and serves a public purpose. Where the underlying conduct is personal (election contests, private business interests, sexual misconduct, defamation of political opponents), Florida courts have refused to invoke the doctrine, and Article VII, § 1 of the state constitution forbids public spending without a public purpose.

The opinion fits neatly into that doctrinal box. It works through the factors with reference to the body of case law and identifies an additional internal consistency check (the technology policy) that reinforces the result.

Citations and references

Statutes and constitutional provisions:
- § 111.07, Fla. Stat. (Defense of civil actions against public officers)
- Art. VII, § 1, Fla. Const. (Taxation; appropriations)

Cases:
- Thornber v. City of Ft. Walton Beach, 568 So. 2d 914 (Fla. 1990)
- Maloy v. Bd. of Cty. Comm'rs of Leon Cty., 946 So. 2d 1260 (Fla. 1st DCA 2007)
- Chavez v. City of Tampa, 560 So. 2d 1214 (Fla. 2d DCA 1990)
- Ellison v. Reid, 397 So. 2d 352 (Fla. 1st DCA 1981)
- Markham v. State, Dep't of Revenue, 298 So. 2d 210 (Fla. 1st DCA 1974)
- Lomelo v. City of Sunrise, 423 So. 2d 974 (Fla. 4th DCA 1982)
- Duplig v. City of S. Daytona, 195 So. 2d 581 (Fla. 1st DCA 1967)
- Peck v. Spencer, 26 Fla. 23, 7 So. 642 (1890)
- Williams v. City of Miami, 42 So. 2d 582 (Fla. 1949)
- Estes v. City of N. Miami Beach, 227 So. 2d 33 (Fla. 1969)
- Miller v. Carbonelli, 80 So. 2d 909 (Fla. 1955)
- Nuzum v. Valdes, 407 So. 2d 277 (Fla. 3d DCA 1981)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/public-official-reimbursement-of-attorney-fees
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8032

Original opinion text

Ms. Alison P. Rogers

Escambia County Attorney

221 Palafox Place, Suite 430

Pensacola, Florida 32502

Dear Ms. Rogers:

On behalf of the Escambia County Board of County Commissioners ("Board"), you have requested an opinion addressing the following question:

Whether the Board may legally determine under the common law that a sitting Commissioner is entitled to legal representation at public expense to defend himself against a second defamation action brought by a former Commissioner where the alleged defamatory statements were made prior to the Commissioner's candidacy and current term of office, but the alleged statements were not [posted on Facebook] until after the Commissioner was elected?[1]

You have confirmed that the Commissioner's request has been made in connection with a lawsuit filed by a former commissioner ("Plaintiff"), who is suing a present commissioner ("Commissioner") and an additional defendant ("Defendant"), each described in the complaint as "a natural person residing in Escambia County, Florida."[2] Your letter to this office reflects that the Commissioner making the request was elected in November of 2014. Attorney General Bondi has asked me to respond to your request.

In his complaint, the Plaintiff (a former political opponent of the Commissioner) alleges that Defendant, "on behalf of himself and [the Commissioner]," posted allegedly "defamatory material" on Facebook, consisting of emails purportedly exchanged (and therefore first "published")[3] between the Defendant and the Commissioner from November 6, 2013 through September 28, 2014. The Plaintiff continues:

"7. ...In pertinent part, those materials accuse the Plaintiff of engaging in affairs and marital infidelities.

8. The publication of these statements were (sic) intended to cause (sic) aspersions upon the Plaintiff's conduct and character.

9. The statements made by the Defendants…and the implications contained therein, are false, malicious (in law and fact), and defamatory.

10. The statements published by the Defendants were done so (sic) in complete disregard of their obviously harmful effect on the Plaintiff's reputation and good-standing in the community."

As a threshold matter, although you have asked about the Commissioner's entitlement to "legal representation at public expense to defend himself" against this lawsuit, you have not asked about the applicability of section 111.07, Florida Statutes ("Defense of civil actions against public officers, employees, or agents"). It provides that "any county…is authorized to provide an attorney to defend any civil action arising from a complaint for damages or injury suffered as a result of any act or omission of action of any of its officers, employees, or agents for an act or omission arising out of and in the scope of his or her employment or function[.]" Because, in this case, the alleged statements on which the lawsuit is predicated were made before the Commissioner became a county officer, section 111.07 would not, on its face, appear to apply.

But even where the statute does not apply, a public official may, under certain circumstances, be entitled to reimbursement under the common law for attorney's fees incurred in a civil suit based on his or her challenged official actions. See generally Thornber v. City of Ft. Walton Beach, 568 So. 2d 914, 916 (Fla. 1990) ("In this case, however, our inquiry does not end at whether the council members are entitled to recover fees under section 111.07."). In every case where reimbursement is sought relying on the common law principle regarding reimbursement of fees for public officials who "successfully [defend] against unfounded allegations of official misconduct," however, the doctrine may only be applied consistent with the basic tenet of Florida law that the expenditure of public funds must be used primarily for a public, and not a private, purpose.[4] Thus, an official seeking payment of public funds to reimburse him or her for attorney's fees incurred must establish entitlement to this common law exception, demonstrating that the official's claim is consistent with the justification underlying it.

That justification was clearly articulated in Thornber. There, the Florida Supreme Court observed that the "purpose of this common law rule is to avoid the chilling effect that a denial of representation might have on public officials in performing their duties properly and diligently." 568 So. 2d at 917 (Emphasis added). "To deny a public official representation for acts purportedly arising from the performance of his official duties would have a chilling effect upon the proper performance of his duties and the diligent representation of the public interest." Nuzum v. Valdes, 407 So. 2d 277, 279 (Fla. 3d DCA 1981) (Emphasis added).

However, as later stated in Maloy v. Bd. of Cty. Comm'rs of Leon Cty., 946 So. 2d 1260, 1262 (Fla. 1st DCA 2007), "[u]nder Thornber, a public official is not entitled to taxpayer funded representation simply because an allegation of misconduct arises in the course of his public duties":

"Rather, the context out of which the alleged misconduct arose must also serve a public purpose. In Ellison, a property appraiser's participation in a training seminar served a public purpose. In Lomelo [v. City of Sunrise, 423 So. 2d 974, 976 (Fla. 4th DCA 1982)], a mayor's use of his authorized power to release an arrestee served a public purpose. In Chavez, a city council member's vote, although part of her official duties, served only her private financial interests and not a public purpose."

Id. at 1265.

Consistent with these principles, a framework for analysis has emerged from the cases (decided both before and after Thornber) in which the common law doctrine has been examined. Under this framework, the relevant questions are: 1. Was the official's successful defense against the charges undisputed? 2. Did the challenged acts arise out of the official's performance of public duties and serve a public purpose? 3. Is the substance of the litigation of interest to the administration of the business of the prospective payor (here, Escambia County)? 4. Did the prospective payor (here, Escambia County) authorize the challenged acts?

Ultimately, the Commission must make the decision, based on the factual evidence before it, regarding whether the circumstances applicable to the Commissioner's request satisfy the common law prerequisites for reimbursement. Hopefully, however, the informal comments provided herein will assist you in advising your client.

From the facts presented, it appears that the crux of the complaint against the Commissioner is that, prior to the time he was elected to county office, the Commissioner sent emails to a person other than the Plaintiff that allegedly contained "false, malicious (in law and fact), and defamatory" statements "intended to [cast] aspersions on the Plaintiff's conduct and character." After the Commissioner was elected to county office, the person to whom the emails were sent, allegedly "on behalf of himself and [the Commissioner]," posted the emails on Facebook. Using these allegations (whose truth, falsity, or legal sufficiency has not yet been judicially determined) as the context for the Commission's analysis, the following questions arise:

§ Has the matter been successfully concluded?

No. The Commissioner seeks to have Escambia County (the "County") provide his legal defense in the pending litigation.

§ Did the challenged acts arise out of the official's performance of public duties?

No. You have referenced no legal authority—and I have found none—that imposed a public duty on the commissioner to send emails which allegedly cast "aspersions" on a former political opponent by purportedly accusing him of "engaging in affairs and marital infidelities." Unlike the allegedly defamatory statements of the mayor in Duplig—made in his official capacity and in the course of bringing to the council's attention information concerning the conduct of officials serving at the pleasure of the council—here, the predicate acts (writing the emails) occurred prior to the time the Commissioner was elected to county office, and served no official function. Their subsequent posting on Facebook does not make the ensuing litigation "arise" out of the Commissioner's performance of public duties. Cf. Markham, 298 So. 2d at 214 (rejecting an argument that, "although the election contest was personal prior to his assuming office,…it thereupon acquired a public purpose.").

§ Did the challenged acts serve a public purpose?

No. You have referenced no legal authority—and I have found none—that reflects that sending, or posting on social media, emails which allegedly cast "aspersions" on a former political opponent by purportedly accusing him of "engaging in affairs and marital infidelities" furthers a "public purpose." Cf. Maloy, 946 So. 2d at 1265 ("[A] public official's sexual conduct, whether in the form of illicit sexual harassment or consensual relations between adults, and whether occurring inside or outside of the workplace, does not serve a public function."); Chavez, 560 So. 2d at 1218 ("From our study of the intent and policy of the legislature in the context of ethical behavior, we think 'public purpose' equates with 'public interest' and excludes any taint of 'private interest.'").

§ Is the substance of the litigation of interest to the administration of the business of the potential payor (here, the County)?

No. In your letter, you state that the Plaintiff had previously filed a defamation action against the Commissioner "in his personal capacity," and that such action "was ultimately dismissed with prejudice after the trial court concluded the statements were not actionable[.]" You indicate that, in connection with the Commissioner's request regarding the Plaintiff's second suit based on alleged defamation, the Commission has "questioned whether the pattern or practice of litigiousness by a former political opponent against an elected official may be relevant under the Thornber analysis."

However, you have referenced no legal authority—and I have found none—that would support a conclusion that the litigiousness of the Plaintiff is a relevant consideration. Instead, courts have examined whether the gravamen of the matter alleged in the complaint implicates the proper administration of the local government from whom reimbursement is sought. Because the complaint in this case challenges allegedly defamatory statements pertaining to a former political opponent made by a Commissioner prior to his election and in his personal capacity (albeit posted on Facebook after the Commissioner's election to office), the business of the County does not appear to be implicated.

§ Did the potential payor (here, the County) authorize the challenged acts?

No. Relevant to this question, on August 20, 2009, the County Commissioners' Technology Policy was adopted. It provides, in pertinent part, as follows:

"A. Purpose:

…

The purpose of this policy is to establish rules for how the County Commissioners use technology to communicate to ensure they conduct themselves in a responsible, professional, ethical and efficient manner, with an eye towards the public's perception of their elected officials and how they conduct business. …

B. Policy:

1. Applicability: This policy is intended as an additional layer of control over the County Commissioners' use of technological resources, regardless of the ownership of those resources. …

2. Electronic Mail (E-Mail): In order to ensure compliance with Florida's Public Records' Law, including record retention requirements, Commissioners shall not use private e-mail accounts to conduct County business. …

3. Social Networking Accounts, Twitter, Story Forum Comments, Blogs and Similar Communications: Commissioners shall not discuss County business on social networking sites, including, but not limited to, Facebook and Twitter, and shall not blog or otherwise communicate on the internet about County business other than via e-mail as provided above and in other applicable laws and regulations. …

C. Enforcement:

A majority of the County Commission may take any available enforcement action against a fellow Commissioner found to be in violation of this policy. Additionally, the County shall not be responsible for any costs resulting from a Commissioner's failure to follow this policy. Such costs are to include, but not be limited to, text messaging charges and attorney's fees, unless specifically allowed by State law. …"

(Emphasis added).

As analyzed above, the challenged emails allegedly authored by the Commissioner before he was elected, sent by private email to a third party, and subsequently posted on Facebook involve allegedly defamatory statements made about a former political opponent prior to the Commissioner's assumption of any County duties. Therefore, such emails would not appear to pertain to "County business."

However, any argument that these actions do implicate the County's business would also lead to a conclusion that the sending and posting of such emails would appear to violate various provisions of the County Commissioners' Technology Policy. Rather than being authorized by the potential payor (the County), such actions (if done by a sitting Commissioner) would appear, when compared to the County's technology policy, to have been prohibited by it.

Based on the foregoing, although the Commission must ultimately decide whether it can legally authorize the use of County funds to reimburse the Commissioner for attorney's fees incurred in his defense against the subject defamation action, from the facts alleged in the complaint and providing the context in which the subject litigation has arisen, none of the Thornber factors authorizing payment of such fees at taxpayer expense facially appear to be met in this case. I trust that these informal observations will assist you in advising the Commission regarding its potential actions.

Sincerely,

Teresa L. Mussetto

Senior Assistant Attorney General

TLM/tsh