Could Marksville pay to defend its mayor against a civil suit naming him individually?

Plain-English summary

Marksville's mayor asked whether the city had to provide or pay for his lawyer in a former employee's civil suit naming him individually. The 2013 opinion said the city could choose to pay for a defense if the alleged actions occurred within the course and scope of the mayor's duties. The city, not the AG, had to make that factual determination. The individual-capacity wording in the suit's caption did not prove the conduct was private.

The AG said a city could begin paying the defense before final judgment after finding that the civil claims arose from official actions. If it became apparent during litigation that the conduct lay outside official duties, public funding had to stop. The opinion also described checks on the reasonableness and necessity of legal fees and expenses.

Currency note

This opinion was issued in 2013. 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.

Historical summary

Mayor and city officials

The opinion answered the mayor's question as one of city choice and fact-finding, not a mandatory city obligation. It referred to earlier AG opinions for the rules on public reimbursement of defense costs.

City finance officers

The opinion said an entity choosing to reimburse legal expenses must assess the attorney's hourly rate, hours worked, and costs for reasonableness and necessity.

Common questions

Did being sued personally require the mayor to pay every defense cost himself?

No. The AG said the caption's individual-capacity label was not enough to prove the alleged acts fell outside official duties. The city could fund a defense after finding the civil claims arose from those duties.

Was Marksville required to provide the mayor's lawyer?

No. The opinion said a qualifying local public entity "may choose" to use public funds. It did not impose a duty to pay.

Did the city have to wait for the civil suit to end?

The AG said it could begin funding a qualifying civil defense without waiting for final judgment, but had to stop if the conduct proved outside official duties.

Background and statutory framework

The mayor described a former employee's lawsuit arising, according to his request, from acts in his official capacity. The opinion referred to La. Atty. Gen. Op. No. 12-0085 for the closely related question and listed past opinions addressing reimbursement of defense costs. Its heading cited La. Const. art. VII, Sec. 14 on public funds.

Related official opinion

The 13-0026 source ends with "Enclosure: La. Atty. Gen. Gp. No. 12-0085" but does not reproduce that enclosure. The earlier opinion is available separately at Louisiana Opinion 12-0085.

Citations

• La. Const. art. VII, Sec. 14: public-funds provision identified in the opinion's heading.
• La. Atty. Gen. Op. No. 12-0085: earlier opinion referred to as the enclosure.

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/13-0026

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

~tat~ of 1Jlouisiana
DEPARTMENT OF JUSTICE
P.O. BOX 94005
BATON ROUGE
70804-9005
JAMES D. "BUDDY" CALDWELL
ATIORNEY GENERAL

APR 11 2013
OPINION 13-0026

90 - A - 1
PUBLIC FUNDS & CONTRACTS
La. Const. art. VII, Sec. 14
Mr. John Lemoine
When a local public official is named individually in a civil lawsuit based
Mayor, City of Marksville
on conduct or actions he took in the course and scope of his position,
427 N. Washington Street
the local public entity may choose to use public funds to fund the
litigation. Whether the actions alleged in the civil suit occurred in the
Marksville, Louisiana 71351
course and scope of the pUblic official carrying out his official duties is a
factual determination that must be made by the local entity.

Dear Mayor Lemoine:

You have requested an opinion of this office regarding the use of public funds to pay attorney's fees associated with a lawsuit filed against you.

According to your request, a former employee of the City of Marksville has sued you, naming you as defendant in your individual capacity and not in your official capacity as the Mayor of the City of Marksville. Your request further states that the actions/conduct which are the basis for the lawsuit, were made while acting in your official capacity as mayor. Therefore, you have asked our office whether the City of Marksville must pay for or provide you legal representation to defend yourself in the lawsuit.

Our office has repeatedly opined that if a local public official or employee is sued for civil damages or charged with crime and is found not liable or not guilty and the allegations arose out of the performance of his official functions, then the public body that employs that person may, but does not have to, payor reimburse the attorney's fees and expenses for the defense of the suit, provided the expenses were reasonable and necessary. 1 These opinions have also consistently stated that, if a local entity is legally able to reimburse legal fees and makes the choice to do so, the entity must also determine: (i) that the hourly rate charged by the attorney was reasonable; (ii) that the hours spent by the attorney were reasonable and necessary; and (iii) that any costs incurred by the attorney were reasonable and necessary. See La. Atty. Gen. Op. No.
07-0045.

1 The following opinions address the use of public funds by a local entity for reimbursement of legal fees incurred when a public official has to defend himself against criminal, ethics, or civil charges brought against him: 77-1131,77-1610,79-349, 79-349A, 80-105A, 80-209, 83-475, 83-611, 85-412, 87-699, 87­ 744, 90-38, 90-490, 94-276, 94-384, 94-369, 94-369A, 96-152, 96-398, 97-369, 98-474, 99-27, 99-180, 99-356A, 00-157, 01-94, 02-0005, 02-0027, 03-0261, 04-0133, 05-0050, 05-0144, 05-0302, 05-0377, 07­ 0041,07-0045,07-0132,08-0094,08-0101,09-0074, 09-0130, 09-0132, 09-0280, 10-0099, 10-0182, 10­ 0290, 11-0182, 12-0071, and 12-0080.

Page 2

Mayor John Lemoine
Opinion 13-0026
Page -2­

In response to your question of whether the City must pay for or provide you legal representation to defend yourself in a lawsuit filed against you in your individual capacity but based on actions/conduct which you undertook in your official capacity as mayor, we refer you to La. Atty. Gen. Gp. No. 12-0085, which addressed the same question and is attached.

It is our opinion that when a local public official is named in a civil lawsuit because of actions he took in the course and scope of his position, the local public entity may choose to use public funds to fund the litigation. Whether the actions alleged in the civil suit occurred in the course and scope of the public official carrying out his official duties is a factual determination that must be made by the local entity. As a general rule, the our office refrains from making factual determinations. If civil charges are filed against a local public official and the local public entity makes a determination that the charges arise from the official's official actions, it is our opinion that public funds may be used to pay for his defense without the necessity of awaiting a final judgment. If at any point during the litigation it becomes apparent that the conduct of the public official occurred outside or beyond the course and scope of his public duties, then public funding of the defense must stop. We note that the fact that the caption of a civil lawsuit states that a public official is sued in his official and individual capacities does not necessarily mean that there is any merit to the allegations in the suit or that the actions alleged were in the public official's individual capacity.

In summary, it remains the opinion of this office that when a public official is acting beyond the course and scope of his duties, he is not entitled to have public funds used to pay the legal fees for the defense of civil, criminal, or ethics charges brought against him. The fact that the caption to a lawsuit states that a public official is sued in his individual capacity only is not sufficient proof that the conduct complained of occurred outside or beyond the course and scope of his public duties. The determination of whether the actions of the local public official or employee are actions taken in the course of carrying out his or her official duties is a factual determination that must be made on a case by case basis.

We trust this adequately responds to your request. However, if our office can be of further assistance, please do not hesitate to contact us.

Yours very truly,

JAMES D. "BUDDY" CALDWELL
Attorne~y
Genera..I

By:
M
Lindsey K. unter v-~
----::.--=-----='----­

Assistant Attorney General
Enclosure: La. Atty. Gen. Gp. No. 12-0085