Can a Minnesota township use town funds to reimburse a former police chief for the costs of defending criminal charges that were ultimately dismissed?

Plain-English summary

New Scandia Township in Washington County had elected Ms. S as constable in 1977, then appointed her Chief of Police when the constable position was abolished in 1986. She resigned in April 1993 for medical reasons. A Washington County Grand Jury indicted her in August 1994 on two counts: misconduct of a public officer (Minn. Stat. § 609.43(2)) and unauthorized disposal of records (Minn. Stat. § 138.225). She retained her own attorney, paid $4,500 in fees, and the district court dismissed the indictment in March 1995. The town attorney David K. Hebert asked whether the township could reimburse her for the legal fees.

The AG answered no twice over: the town was neither required nor authorized to reimburse.

On the requirement question, the only Minnesota statutes that mandate local-government defense of officers are Minn. Stat. § 466.07 (defense and indemnification for damages claims arising from official duties) and § 471.44 (defense of peace officers in actions for damages from good-faith arrests or unfounded misconduct charges before civilian review). Both speak to civil "damages" actions, not criminal defense. A grand jury indictment is not a damages action. So no statutory obligation exists.

On the authority question, the legislature did enact a discretionary reimbursement statute in 1983 (Minn. Stat. § 465.76) after a 1980 AG opinion (125-A-25) said local governments had no implied authority to do so. Section 465.76 lets the governing body of a "home rule charter or statutory city or county" reimburse an officer or employee for costs and reasonable attorney's fees incurred in defending criminal charges arising out of the reasonable and lawful performance of duties for the city or county. But the statute is expressly limited to "cities and counties." Towns, including urban towns, are not on the list.

The AG considered whether to read the statute as implicitly extending to urban towns under their general "many powers of statutory cities" status (Minn. Stat. § 368.01 and the 1963 special legislation for New Scandia). The AG declined, on two grounds. First, the urban-town powers are "specifically enumerated by statute and special legislation and do not expressly include the authority granted by section 465.76." Second, the AG distinguished a 1992 opinion (471-a) that had extended a city's criminal-defense-reimbursement authority by analogy to defending against open meeting law penalties. That extension worked because the analogy was within the city's broader power. Extension to towns would require a different broader power that the AG could not identify.

The AG closed with a recommendation directed at the legislature: it may well wish to re-examine the limitation and consider extending § 465.76 to other local government units. But the AG would not make that extension "in the name of statutory construction."

The bottom line for Ms. S: her $4,500 in defense costs came out of her own pocket.

Currency note

This opinion was issued in 1996. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Anyone applying this opinion today should pull the current text of Minn. Stat. §§ 465.76, 466.07, and 471.44 to see whether the legislature has since extended the criminal-defense-reimbursement authority to towns.

Historical context: what the AG concluded

The AG built the opinion on a careful textual reading of three statutes:

• Minn. Stat. § 466.07 (1994): requires local governments to defend and indemnify officers for "damages" claims arising from performance of official duties. By its terms, limited to damages actions, not criminal.
• Minn. Stat. § 471.44 (1994): requires defense of peace officers in actions to recover "damages" from good-faith arrests, plus defense before civilian review authorities. Again, "damages" actions, not criminal.
• Minn. Stat. § 465.76: authorizes discretionary reimbursement, but only for home-rule charter or statutory cities and counties.

The AG also looked at the legislative history. The 1980 AG opinion (125-A-25) had said local governments lack implied authority to reimburse criminal defense costs absent express statutory authority. The legislature responded with § 465.76 in 1983, granting discretionary authority. But the legislature drew the authority narrowly. Cities and counties got it. Towns did not.

The AG considered the analogy argument. Urban towns are creatures of Minn. Stat. § 368.01 and special legislation. New Scandia in particular operates under a 1963 special act. Urban towns have many of the same powers as statutory cities. The argument was that the urban-town status should pick up § 465.76 authority along with the rest of the statutory-city powers. The AG rejected this.

Two reasons. First, urban-town powers are specifically enumerated; § 465.76 is not among them. The legislature knew how to extend the authority to towns (it could have listed them in § 465.76) and chose not to. Second, the 1992 opinion (471-a) extension to open-meeting-law defense had worked because the analogous defense fit within the broader city authority to defend against criminal charges. For towns, there is no broader town authority for criminal defense reimbursement to draw on, because the legislature did not grant one.

The AG closed with a deferential note that the legislature may want to act. It has not, as of the opinion's date.

Common questions

Q: What if the town wanted to reimburse her anyway, as a discretionary act of charity?
A: Towns can spend money only as authorized by statute. A reimbursement that lacks statutory authority is an unauthorized expenditure of public funds. The town officers who approved it could face personal liability or audit findings.

Q: Does this opinion apply to all townships, or only urban towns?
A: The opinion is specifically about urban towns. It necessarily applies to ordinary townships as well, because ordinary townships have even fewer powers than urban towns.

Q: What about reimbursement under an insurance policy?
A: The opinion does not address insurance. If the town had an insurance policy with criminal-defense coverage in effect, the insurer might pay. But that is a contract question, not a statutory question, and the policy would have to expressly cover criminal defense.

Q: Has the legislature since extended § 465.76 to towns?
A: Anyone applying this opinion should check the current text. The opinion is a 1996 snapshot of statutory authority.

Q: What if the criminal charges arose from clear official duties, like an arrest later determined to be unconstitutional but made in good faith?
A: Section 471.44 covers civil damages actions arising from good-faith arrests, but does not cover criminal prosecution of the officer. The town would still have no authority to reimburse criminal defense costs.

Q: Could she have sued the town for indemnification?
A: The opinion analyzes the town's authority, not whether she had any private right of action against the town. The damages-defense statutes (§§ 466.07, 471.44) create rights in officers to be defended in damages actions, but those rights do not extend to criminal defense.

Background and statutory framework

Minnesota's framework for officer indemnification has three layers:

1. Statutory mandatory defense (Minn. Stat. § 466.07): local governments must defend and indemnify officers in damages actions arising from official duties.
2. Statutory mandatory defense for peace officers (Minn. Stat. § 471.44): cities, towns, counties, and similar must defend peace officers in damages actions from good-faith arrests and unfounded misconduct review proceedings.
3. Statutory discretionary reimbursement for criminal defense (Minn. Stat. § 465.76): cities and counties may reimburse officers or employees for criminal-defense costs arising from reasonable and lawful performance of duties, with a quorum-and-court-approval safeguard for self-interested votes.

The legislature did not extend layer 3 to towns. The AG declined to extend it by construction.

The opinion is signed by Assistant Attorney General Kenneth E. Raschke, Jr., Manager of the Opinions Division, on behalf of AG Hubert H. Humphrey III.

Citations and references

Statutes:
- Minn. Stat. § 138.225 (unauthorized disposal of records)
- Minn. Stat. § 368.01 (1994) (urban towns)
- Minn. Stat. § 465.76 (criminal defense reimbursement for cities and counties)
- Minn. Stat. § 466.07 (1994) (defense and indemnification for damages)
- Minn. Stat. § 471.44 (1994) (defense of peace officers in damages actions)
- Minn. Stat. § 609.43(2) (misconduct of public officer)

Other AG opinions referenced:
- Op. Atty. Gen. 125-A-25, July 28, 1980 (county lacks implied authority for criminal defense reimbursement)
- Op. Atty. Gen. 471-a, December 31, 1992 (city authority includes defense against open meeting law penalties)

Historical:
- Act of April 18, 1963, ch. 274, 1963 Minn. Laws 368 (urban town legislation for New Scandia)

Source

• Landing page: https://www.ag.state.mn.us/Office/Opinions/
• Original PDF: https://www.ag.state.mn.us/Office/Opinions/442a1-19960725.pdf

Original opinion text

TOWN FUNDS: OFFICERS: Town is not required or authorized to reimburse officer for costs of criminal defense. Minn. Stat. §§ 465.76, 466.07, 471.44 (1994).

442a-1
(Cr. Ref. 442a-11; 442a-20)
July 25, 1996

David K. Hebert, Esq.
Hebert, Welch, Humphreys & Grindberg, P.A.
Attorneys for New Scandia Township
Town Square
20 North Lake Street, Suite 301
Forest Lake, MN 55025

Dear Mr. Hebert:

In your letter to Attorney General Humphrey, you present substantially the following:

FACTS

New Scandia Township is a township with urban powers located in Washington County, Minnesota.

In 1977, Ms. S was elected constable for New Scandia Township. On or about 1986 the constable position was abolished. At that time, Ms. S was appointed Chief of Police. During most of her tenure with New Scandia Township, she was the only employee of the Police Department. She was responsible for maintaining the records of the Department.

She served as a police officer until her resignation for medical reasons on April 5, 1993.

On August 24, 1994 an indictment was issued by a Washington County Grand Jury charging Ms. S with the following offenses:

Count I Misconduct of Public Officer or Employee (in violation of Minn. Stat. 609.43(2));

Count II Unauthorized disposal of records (in violation of Minn. Stat. 138.225).

Both offenses were alleged to have been committed on or about April 4 or April 5, 1993 at New Scandia Township, Washington County, Minnesota.

Ms. S privately retained an attorney to defend her against the charges. Based on arguments of counsel, the Judge of District Court dismissed the indictment on March 17, 1995.

In defending this action Ms. S incurred attorney's fees of $4,500.00.

You then ask substantially the following:

QUESTION

Is the Town of Scandia required or authorized to reimburse Ms. S for the costs of her legal defense.

OPINION

We answer both parts of your question in the negative. In Op. Atty. Gen. 125-A-25, July 28, 1980, we concluded that a county, as a local unit of government, was neither required nor permitted, absent clear statutory authority, to reimburse an officer or employee for costs of defending against criminal charges arising from acts allegedly done in connection with official duties. Since we have not located any statutory provision which clearly requires or authorizes reimbursement in the circumstances described, we must conclude that such reimbursement is not permitted.

We believe it is clear that reimbursement is not required. Minn. Stat. § 466.07 (1994) requires local governments to defend and indemnify officers and employees in connection with actions for "damages" arising from performance of official duties. Likewise, Minn. Stat. § 471.44 (1994) requires defense of a peace officer in an action to recover "damages" arising out of an arrest made in good faith by the officer or in connection with defense of unfounded charges of misconduct before a "civilian review authority." Neither of these sections, however, has application to defense of a criminal indictment such as that presented here. Therefore, absent some additional statutory requirement which has not been called to our attention, we find no statutory obligation of the town to reimburse Ms. S for her defense costs.

There does exist authority for certain local governments, in their discretion, to reimburse officers and employees for costs of defense of criminal actions. Following our 1983 opinion cited above, the Legislature enacted Minn. Stat. § 465.76 which provides:

If reimbursement is requested by the officer or employee, the governing body of a home rule charter or statutory city or county may, after consultation with its legal counsel, reimburse a city or county officer or employee for any costs and reasonable attorney's fees incurred by the person to defend charges of a criminal nature brought against the person that arose out of the reasonable and lawful performance of duties for the city or county, provided if less than a quorum of the governing body is disinterested, that such reimbursement shall be approved by a judge of the district court.

The authority granted by that section is expressly limited to cities and counties and does not extend to towns. We recognize that New Scandia, as an urban town, is granted many powers of statutory cities. However, those powers are specifically enumerated by statute and special legislation and do not expressly include the authority granted by section 465.76. See Minn. Stat. § 368.01 (1994); Act of April 18, 1963, ch. 274, 1963 Minn. Laws 368. Therefore, we do not believe that an "urban" town can be considered a statutory city for purposes of Minn. Stat. § 465.76.

We have considered whether the authority of section 465.76 might be extended, by implication, to towns by means of analysis similar to that employed in Op. Atty. Gen. 471-a, December 31, 1992, wherein we concluded that authority of a city to reimburse for criminal defense costs might be construed to include the power to reimburse for defense against charges of violating the open meeting law, despite the fact that such charges are not "of a criminal nature." Similar analysis does not apply here, however. The 1992 opinion was based upon the proposition that authority to reimburse for defense against the civil penalties of the open meeting law could be seen as included within the broader power of a city to reimburse for defense against charges of a more serious criminal nature. In the instant case, we can point to no broader power of the town within which the criminal defense of officers and employees might be found to be included. For whatever reason, the Legislature has seen fit to restrict the authority for criminal defense reimbursement for local employees to cities and counties. While the Legislature may well wish to re-examine that limitation and consider extending section 465.76 authority to other local units of government, we are not in a position to make that extension in the name of statutory construction.

Thus, it is our opinion that the town is neither obligated nor authorized to reimburse Ms. S for defense of the criminal action.

Very truly yours,

HUBERT H. HUMPHREY III
Attorney General

KENNETH E. RASCHKE, JR.
Assistant Attorney General
Manager, Opinions Division