by Robert Michael Eschenfelder
While becoming an elected or appointed public official in Florida affords the official personal pride, community respect, and, of course, the honor of serving constituents, it also has some challenges. Included among them are the duty to learn and comply with Florida’s host of ethics and open government laws. Part I of this article discusses the statutory parameters under which a Florida public official is entitled to recover private attorneys’ fees from his or her governmental entity for successfully defending a Florida Public Records Act suit. Part II explores the common law theory of recovery.
There are a variety of limitations and protections the law affords Florida’s public officials so as not to discourage their public service. For instance, while it would not be legal to pay out of public funds the expenses, costs, and attorneys’ fees incurred in defense of an official against criminal charges in connection with the official’s public duties,1 the legislature has provided that in Sunshine Law cases: “Whenever any member of any board or commission…is charged with a violation of this section and is subsequently acquitted, the board or commission is authorized to reimburse said member for any portion of his or her reasonable attorney’s fees.”2
And, in cases alleging an official has violated Florida’s Code of Ethics for Public Officers, F.S. §112.317(7) affords the Commission on Ethics limited discretion to award defense fees to the accused if the accuser knew the complaint was false or recklessly disregarded whether the complaint was false.
These important sources of recovery will protect an official even after the official has retired,3 and will not constitute a form of unlawful compensation to the official.4
While the legislature has elected to expressly address the recovery of a public official’s defense counsel fees within the Sunshine Law and Ethics Code statutory schemes, it has not done so within the body of Florida’s Public Records Act. Rather, the act’s attorneys’ fee shifting provision goes only one way — in favor of a prevailing plaintiff.5 While it could be debated whether the legislature intended to omit consideration of a prevailing public official’s defense fees in public records cases, two potential theories of recovery, one statutory and one based on common law, are worth consideration by public officials who prevail against a public records suit. I discuss each of these theories.
Reimbursement Under the “Defense of Civil Actions” Statutes
There may be instances in which counsel for a governmental entity may not be able to undertake representation of an individual employee or official of that entity. Such situations can include a determination that the representation creates a conflict between the defense strategy of the entity and that of the official or employee, or that the Rules Regulating The Florida Bar prohibit such representation. While the statutes do not mandate a public body to defend an employee or official when litigation begins,6 they provide for reimbursement in certain cases when the litigation concludes. Specifically, F.S. §111.07, titled “Defense of civil actions against public officers, employees, or agents,” provides:
“Any agency of the state, or any county, municipality, or political subdivision of the state, 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, unless, in the case of a tort action, the officer, employee, or agent acted in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. Defense of such civil action includes, but is not limited to, any civil rights lawsuit seeking relief personally against the officer, employee, or agent for an act or omission under color of state law, custom, or usage, wherein it is alleged that such officer, employee, or agent has deprived another person of rights secured under the [f]ederal [c]onstitution or laws. Legal representation of an officer, employee, or agent of a state agency may be provided by the Department of Legal Affairs. However, any attorney’s fees paid from public funds for any officer, employee, or agent who is found to be personally liable by virtue of acting outside the scope of his or her employment, or was acting in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property, may be recovered by the state, county, municipality, or political subdivision in a civil action against such officer, employee, or agent. If any agency of the state or any county, municipality, or political subdivision of the state is authorized pursuant to this section to provide an attorney to defend a 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 and fails to provide such attorney, such agency, county, municipality, or political subdivision shall reimburse any such defendant who prevails in the action for court costs and reasonable attorney’s fees.”7
In turn, F.S. §111.071, titled “Payment of judgments or settlements against certain public officers or employees,” provides, in part:
“(1) Any county, municipality, political subdivision, or agency of the state which has been excluded from participation in the Insurance Risk Management Trust Fund is authorized to expend available funds to pay:
(a) Any final judgment, including damages, costs, and attorney’s fees, arising from a complaint for damages or injury suffered as a result of any act or omission of action of any officer, employee, or agent in a civil or civil rights lawsuit described in s. 111.07. If the civil action arises under s. 768.28 as a tort claim, the limitations and provisions of s. 768.28 governing payment shall apply. If the action is a civil rights action arising under 42 U.S.C. s. 1983, or similar federal statutes, payments for the full amount of the judgment may be made unless the officer, employee, or agent has been determined in the final judgment to have caused the harm intentionally.
(b) Any compromise or settlement of any claim or litigation as described in paragraph (a), subject to the limitations set forth in that paragraph.
(c) Any reimbursement required under s. 111.07 for court costs and reasonable attorney’s fees when the county, municipality, political subdivision, or agency of the state has failed to provide an attorney and the defendant prevails.
(2) For purposes of this section, a ‘final judgment’ means a judgment upon completion of any appellate proceedings.
(3) ‘Agency of the state’ or ‘state agency,’ as used in this section, includes an executive department, a constitutional officer, the [l]egislature, and the judicial branch.”
When read together, these two statutes require two things in order for reimbursement of a public official’s private legal defense to be appropriate: 1) The civil lawsuit/action brought against the public official must be a “complaint for damages or injury”; and 2) the public official must be the “prevailing party.” While these requirements seem straightforward, both require close analysis by agency counsel when advising an agency with respect to a request for payment of private counsel defense costs of agency officials.
“Complaint for Damages or Injury” Requirement
As to the first requirement, most government lawyers in Florida understand that the Public Records Act does not provide for an award of monetary damages and is not generally understood to be the type of suit requiring compliance with the procedural requirements of F.S. §768.28, the limited waiver of sovereign immunity. Rather, the typical public records suit will make no mention of, nor demand for, damages, nor assert any injury. The typical complaint will assert that the act was violated, that the plaintiff has “no adequate remedy at law,” that the court should declare that the act was violated, that compliance should be mandated and an injunction of further violation be entered, and that the plaintiff is entitled to collect an attorneys’ fee. None of these allegations would seem to constitute a “complaint for damages or injury.”
It is a basic rule of statutory construction that, when a statute contains plain and simple language, it is the duty of the courts to apply the literal meaning of the statute.8 Moreover, it is well-established that when a statute enumerates the things on which it is to operate, it is to be construed as excluding from its operation all things not expressly mentioned — expressio unius est exclusio alterius.9
Applying those rules to the question at hand, since the legislature chose to use the words “complaint for damages or injury” as opposed to “action,” “lawsuit,” or “civil action,” it seems clear it intended to limit eligibility for fee reimbursement in this statute to a narrower subset of general civil actions by adding the modifying words “for damages or injury.” In turn, Black’s Law Dictionary defines “damages” as “[m]oney claimed by, or ordered to be paid to, a person as compensation for loss or injury. Damages are the sum of money which a person wronged is entitled to receive from the wrongdoer as compensation for the wrong.”10
Review of the Public Records Act’s terms confirms that the statutory scheme does not provide for damages awards. While the published opinions have not had occasion to parse the question, if one accepts the contention that a suit brought under the act is not one brought “for damages or injury,” the logical extension is that the statutory provisions in F.S. §§111.07 and 111.071 do not apply to such suits.
“Prevailing Party” Requirement
Setting aside the “for damages or injury” question, F.S. §§111.07 and 111.071 also require that a defendant public official be a “prevailing party.” This requirement can present difficulty for counsel to a governmental agency should the agency’s official elect to settle a Public Records Act suit rather than obtain a final judicial determination.
In support of the argument that an official who elects to initially defend a suit prior to eventual settlement should obtain reimbursement for his or her defense fees, it is true that as a general rule in Florida, a party benefitting from the dismissal of a lawsuit, even as the result of a settlement, will be seen as having “prevailed.” For instance, in Sacks v. Rickles, 155 So. 2d 400 (Fla. 3d DCA 1963), the court held that a dismissal of a suit against a police officer operated to terminate finally any proceeding against the officer and that as such, he prevailed. Also, in State Department of Health and Rehabilitative Services v. Hall, 409 So. 2d 193, 195 (Fla. 3d DCA 1982), the court observed that “a merits determination is not a prerequisite to an award of attorney’s fees where the statute provides that they will inure to the party who prevails.”11 As the court in City of Fort Walton Beach v. Grant, 544 So. 2d 230 (Fla. 1st DCA 1989), aff’d in part, Thornber v. City of Ft. Walton Beach, 568 So. 2d 914 (Fla. 1990), explained:
“In general, when a plaintiff takes a voluntary dismissal the defendant is the prevailing party. Stuart Plaza, Ltd. v. Atlantic Coast Dev. Corp. of Martin County, 493 So. 2d 1136 (Fla. 4th DCA 1986). In Evans, a police officer and the county were sued in a civil action for damages which arose out of the officer’s official duties. The officer was dismissed with prejudice as a result of a settlement negotiated by the county. The trial court found that the officer had “prevailed” and therefore, was entitled to reimbursement of his attorney’s fees pursuant to [F.S. §]111.07 (1983). The appellate court affirmed, stating that “the dismissal operated to terminate any proceeding against the officer...a merits determination is not a prerequisite to an award of attorney’s fees where the statute provides that they will inure to the party who prevails.” 474 So. 2d at 393. In the instant case, Grant prevailed because the dismissal with prejudice in the federal lawsuit signaled an end to the litigation against him and under these circumstances a merits determination was not necessary.”12
It cannot be disputed that, in general, a “determination on the merits is not a prerequisite to an award of attorney’s fees where the statute provides that they will inure to the prevailing party.”13 There must be some end to the litigation on the merits so that the court can determine whether the party requesting fees has prevailed.14
When a governmental entity itself and one or more of its individual officers are both joined in a suit for damages, and the governmental entity brokers a global resolution to include the privately represented officials, there is also authority to support the argument that reimbursement of the officials’ private attorneys’ fees is permissible. In Thornber v. City of Ft. Walton Beach, 568 So. 2d 914 (Fla. 1990), individually named city council members were found to be prevailing parties entitled to reimbursement for attorneys’ fees incurred in a civil rights action for damages brought by a police chief after the members voted to discharge him and when the chief voluntarily dismissed the members in their individual capacities with prejudice as part of a settlement with the city on condition that they would not seek their attorneys’ fees against him.
In Metropolitan Dade County v. Evans, 474 So. 2d 392 (Fla. 3d DCA 1985), a police officer who was joined as a codefendant with his employer (the county) in a civil damages action arising out of his official duties, and who was privately represented, “prevailed” within the meaning of F.S. §111.07 when the case against the officer was dismissed with prejudice pursuant to a settlement effected by the county. However, the general rule is not to be applied in a rigid manner in any suit brought against an individual official: “Although a voluntary dismissal by the plaintiff may provide a sufficient predicate for the defendant to seek attorneys’ fees, entitlement to such fees is determined by, and is dependent upon, the specific statute under which the fees are sought.”15
It, thus, seems clear Florida law requires that in order to accomplish the obligation set forth in McCoy v. Pinellas County, 920 So. 2d 1260, 1261 (Fla. 2d DCA 2006), a court may, and indeed must, look behind a voluntary dismissal at the facts of the litigation “to determine whether a party is a ‘substantially’ prevailing party.”16
In Padow v. Knollwood Club Ass’n, Inc., 839 So. 2d 744, 745 (Fla. 4th DCA 2003), the parties had been litigating over unpaid condominium association fees. After protracting the litigation for some time, the defendant, Dr. Padow, paid most of the association fees his association sought. Determining, correctly, that since it now had obtained its fees it need not continue in the litigation, the plaintiff association dismissed the suit. Thereafter, Dr. Padow sought to recover his fees because the defendant had dismissed the case and, therefore, he had “prevailed.”
The Padow court relied on the Thornber case to identify an exception to the general rule entitling a defendant to attorneys’ fees under a prevailing party statute or contract provision after a plaintiff’s voluntary dismissal of an action. The court stated that it would look behind a plaintiff’s voluntary dismissal to find that Dr. Padow was not a prevailing party entitled to fees, because prior to the dismissal the defendant had “paid the substantial part of the association’s claim for delinquent assessments.”17 The Padow court expanded on its view of the proper prevailing party analysis by noting:
“The test for determining the ‘prevailing party’ under [F.S.] §718.303(1) is ‘whether the party ‘succeed[ed] on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.”’ Munao, Munao, Munao & Munao v. Homeowners Ass’n of La Buona Vita Mobile Home Park, Inc., 740 So. 2d 73, 78 (Fla. 4th DCA 1999) (construing F.S. §723.068 and quoting Moritz v. Hoyt Enters., Inc., 604 So. 2d 807, 809-10 (Fla. 1992) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983))). Here, the association succeeded on the primary issue in the litigation, recovering most of the unpaid assessments that it sought.
Padow argues that a court ‘cannot look past a voluntary dismissal to determine whether a party is a “substantially” prevailing party.’ He cites the general rule that “when a plaintiff voluntarily dismisses an action, the defendant is the prevailing party.” Thornber v. City of Ft. Walton Beach, 568 So. 2d 914, 919 (Fla. 1990). As the Supreme Court explained: ‘A determination on the merits is not a prerequisite to an award of attorney’s fees where the statute provides that they will inure to the prevailing party. Metropolitan Dade County v. Evans, 474 So. 2d 392 (Fla. 3d DCA 1985); State Department of Health & Rehabilitative Services v. Hall, 409 So. 2d 193 (Fla. 3d DCA 1982). There must be some end to the litigation on the merits so that the court can determine whether the party requesting fees has prevailed. Simmons v. Schimmel, 476 So. 2d 1342 (Fla. 3d DCA 1985), review denied, 486 So. 2d 597 (Fla. 1986).’ Thornber, 568 So. 2d at 919.
This case presents an exception to the general rule stated in Thornber. Thornber contemplates that after a voluntary dismissal a trial court must ‘determine whether the party requesting fees has prevailed.’ Id. (emphasis added). This language indicates that a defendant is not automatically the prevailing party for the purpose of an attorney’s fee statute when a plaintiff takes a voluntary dismissal. Here, Padow cannot be a ‘prevailing party’ within the meaning of [F.S.] §718.303(1) because he paid the substantial part of the association’s claim for delinquent assessments prior to the voluntary dismissal.
We agree with the county court that to declare Padow the prevailing party in this case would be contrary to a goal of the statute, which is to discourage needless litigation by encouraging settlement. The judge found that ‘to continue the lawsuit [ ] would have been a waste of resources....’ Consistent with the intent of the statute, the association took the expeditious course of unilaterally dismissing the case to put an end to the litigation, foregoing its colorable claim for attorney’s fees.”18
Clearly, as of the 2003 Padow and 2006 McCoy decisions, the simplistic and rigid “dismissal = prevailing” formula, which some might have assumed had been confirmed in the Thornber case, was being refined so as to allow a more nuanced and logical analysis of fee recovery cases. Indeed, the courts have continued in recent years to limit Thornber and refine the meaning of “prevailing party” in a variety of settings. Four years ago, Tubbs v. Mechanik Nuccio Hearne & Wester, P.A., 125 So. 3d 1034 (Fla. 2d DCA 2013), summarized the holding in Padow, saying, “Padow teaches that courts must look to the substance of litigation outcomes — not just procedural maneuvers — in determining the issue of which party has prevailed in an action. ‘[I]t is [the] results, not [the] procedure, which govern the determination’ of which party prevailed for purposes of awarding attorney’s fees[.]”19
Two years ago in Kelly v. Bankunited, FSB, 159 So. 3d 403 (Fla. 4th DCA 2015), the Fourth District interpreted and expanded on its ruling in the Padow case. It did so by denying an award of statutory “prevailing party” fees when the dismissal of the litigation was by means of a compromise settlement. In so ruling, the Kelly court created a further exception to the general rule noted in Thornber by announcing the following rule:
“…in a situation where both [a]ppellant and [a]ppellee compromised in effectively agreeing to a settlement to end their litigation, we will not hold [a]ppellee responsible for payment of [a]ppellant’s attorneys’ fees, as [a]ppellee’s dismissal of the pending complaint following the settlement was the obvious and appropriate course of action. Where a plaintiff’s voluntary dismissal results in neither party substantially prevailing in the litigation outcome, neither party is the prevailing party for purposes of attorneys’ fees. In such a case, as here, neither the general rule, nor the exception in Padow, applies.
We note that this holding does not require trial courts “to look behind a voluntary dismissal to decide whether the dismissal represents ‘an end or finality to the litigation on the merits[,]’” which has been an approach rejected by our court. The finding that neither party has substantially prevailed by virtue of the voluntary dismissal is regardless of the merits of each party’s claim or defense in the underlying action.”20
In the typical settlement agreement, the plaintiff agrees to accept some consideration in exchange for filing a voluntary dismissal with prejudice. Usually, the parties express that neither side admits any claim or defense raised in the pleadings. But recall that the standard set forth in Tubbs (and followed by every other appellate court to consider the matter) is that “courts must look to the substance of litigation outcomes — not just procedural maneuvers — in determining the issue of which party has prevailed in an action [and that] it is the results, not the procedure, which govern the determination of which party prevailed for purposes of awarding attorney’s fees.”21
Applying this standard to a Public Records Act suit against a public official results in the outcome that when the official incurs defense counsel fees to defend the suit, but then for whatever reason elects to settle with the plaintiff rather than obtain a final judicial determination on the merits, the official has not “prevailed.” This is particularly true when part of the consideration paid by the official to the plaintiff includes the payment of plaintiff’s attorneys’ fees since that exact relief is almost always the only monetary relief requested by a Public Records Act plaintiff.
This outcome not only serves the general policy goal of limiting inefficient litigation delays, but is particularly important in public sector litigation. Absent statutory policy to the contrary, Florida’s courts should not allow a public official the benefit of a taxpayer-paid private defense if the official’s counsel may be tempted to “over-litigate” the suit with the expectation that the eventual settlement occurs, the fees will be paid by the agency, not his or her client. As the Padow court noted, “a goal of the statute [allowing reimbursement of prevailing party fees] is to discourage needless litigation by encouraging settlement.”22
Thus, while public officials should be fully entitled to retain counsel and fight the often-spurious allegations that have become all too familiar in Public Records Act litigation, private counsel (as well as agency counsel) should be mindful that an expensive private defense must end in a judicial determination on the merits for there to be a lawful expenditure of public funds to pay for that defense.
Who Applies the Reimbursement Statutes?
In addition to the substantive analysis of whether a public official is entitled to the recovery of private defense fees upon settlement of a Public Records Act suit, agency counsel should also understand how that decision is made.
While it may be logical to think that the courts would be called upon to apply F.S. §§111.07 and 111.071, individual application of these statutes governing representation of public officials at public expense is to be decided by the respective governmental unit, not the judiciary. As the court explained in Florida Dept. of Ins., Div. of Risk Management v. Amador, 841 So. 2d 612 (Fla. 3d DCA 2003): “There is no constitutional right in Florida to have one’s attorney’s fees paid. Furthermore, Amador is not entitled by statute to have his fees paid under F.S. §111.07 as individual application of §111.07 is to be decided by the respective governmental unit (i.e., the [d]epartment), not the judiciary.”23
While this broad authority may cause agency counsel to see no need to conduct careful analysis of the underlying facts supporting an official’s request for reimbursement under the statute, many local and state agencies cannot pay funds without the approval of a comptroller or auditor. Such officials often have their own independent right and legal duty to prevent unlawful payments of public funds. It is, therefore, advisable that agency counsel work closely with such officials when analyzing how to advise the agency on statutory reimbursement requests.
1 AGO 69-40.
2 Fla. Stat. §286.011(7).
3 See AGO 98-12.
4 Askew v. Green, Simmons, Green and Hightower, P.A., 348 So. 2d 1245 (Fla. 1st DCA 1977), cert. denied, 366 So. 2d 879 (authorizing reimbursement for successful defense of a Sunshine Law suit).
5 Fla. Stat. §119.12.
6 Greer v. Mathews, 409 So. 2d 1105 (Fla. 1st DCA 1982).
7 Emphasis added.
8 See Alligood v. Florida Real Estate Commission, 156 So. 2d 705 (Fla. 2d DCA 1963). See also Fine v. Moran, 77 So. 533 (Fla. 1917) (the general rule is that where language is unambiguous, the clearly expressed intent must be given effect, and there is no room for construction); Osborne v. Simpson, 114 So. 543 (Fla. 1927) (where statute’s language is plain, definite in meaning without ambiguity, it fixes the legislative intention and interpretation and construction are not needed).
9 See Thayer v. State, 335 So. 2d 815, 817 (Fla. 1976); Dobbs v. Sea Isle Hotel, 56 So. 2d 341, 342 (Fla. 1952).
10 Damages, Black’s Law Dictionary (9th ed.) (citing Frank Gahan, The Law of Damages (1936)).
11 See also Metropolitan Dade County v. Evans, 474 So. 2d 392 (Fla. 3d DCA 1985).
12 Beach, 544 So. 2d at 235 (emphasis added).
13 Metropolitan Dade County v. Evans, 474 So. 2d 392 (Fla. 3d DCA 1985); State Department of Health & Rehabilitative Services v. Hall, 409 So. 2d 193 (Fla. 3d DCA 1982).
14 Simmons v. Schimmel, 476 So. 2d 1342 (Fla. 3d DCA 1985), rev. denied, 486 So. 2d 597 (Fla. 1986).
15 McCoy v. Pinellas County, 920 So. 2d 1260, 1261 (Fla. 2d DCA 2006).
16 Padow v. Knollwood Club Ass’n, Inc., 839 So. 2d 744, 745 (Fla. 4th DCA 2003).
17 Id. at 746.
18 Id. at 745-46.
19 Tubbs, 125 So. 3d at 1041 (emphasis added) (internal citations omitted).
20 Kelly, 159 So. 3d at 407 (internal citation omitted).
21 Tubbs, 125 So. 3d at 1041-42 (quoting in part Bessard v. Bessard, 40 So. 3d 775, 778 (Fla. 3d DCA 2010)); Smith v. Adler, 596 So. 2d 696, 697 (Fla. 4th DCA 1992) (emphasis added).
22 Padow, 839 So. 2d at 746.
23 Amador, 841 So. 2d at 614 (citing Nuzum v. Valdes, 407 So. 2d 277, 279 (Fla. 3d DCA 1981) (emphasis added)); see also AGO 91-51 (“[I]t is the duty and responsibility of the board of county commissioners, rather than the particular county officer against whom a claim or litigation has been filed, to determine the appropriateness of and to pay a compromise or settlement of such litigation pursuant to s. 111.071(1)(b), F.S.”).
Robert Michael Eschenfelder is a board certified city, county, and local government lawyer in Manatee County.
This column is submitted on behalf of the City, County and Local Government Law Section, Jeannine Smith Williams, chair, and David Miller, editor.