by Robert Michael Eschenfelder
In part one of this article, I reviewed the potential statutory basis on which a Florida public official might invoke to recover the cost of private counsel to successfully defend a Florida Public Records Act suit. In part two, I review the common law theory available in such cases.
Reimbursement Under the Common Law
In addition to the statutory provisions noted earlier, Florida common law also affords an opportunity for a public official wrongly accused of certain violations of duty to recover private attorneys’ fees upon successfully defending the accusation. “If a public officer is charged with misconduct while performing his [or her] official duties and while serving a public purpose, the public has a primary interest in such a controversy and should pay the reasonable and necessary legal fees incurred by the public officer in successfully defending against unfounded allegations of official misconduct.”1 Unlike the statutory provisions reviewed in the first part of this article, this common law doctrine applies to criminal as well as civil proceedings.2
Under the common law, a public official seeking entitlement to reimbursement of private counsel defense fees must satisfy a two-prong test. The litigation (meaning the lawsuit the official needed to defend) must 1) arise out of or in connection with the performance of his or her official duties; and 2) serve a public purpose.3
As explained by the Florida Supreme Court in Thornber v. City of Ft. Walton Beach, 568 So. 2d 914 (Fla. 1990):
“Florida courts have long recognized that public officials are entitled to legal representation at public expense to defend themselves against litigation arising from the performance of their official duties while serving a public purpose. E.g., Miller v. Carbonelli, 80 So. 2d 909 (Fla. 1955); Williams v. City of Miami, 42 So. 2d 582 (Fla. 1949); Peck v. Spencer, 26 Fla. 23, 7 So. 642 (1890); Lomelo v. City of Sunrise, 423 So. 2d 974 (Fla. 4th DCA 1982), review dismissed, 431 So. 2d 988 (Fla. 1983); Ellison v. Reid, 397 So. 2d 352 (Fla. 1st DCA 1981). 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. Nuzum v. Valdes, 407 So. 2d 277 (Fla. 3d DCA 1981). This entitlement to attorney’s fees arises independent of statute, ordinance, or charter. Lomelo, 423 So. 2d at 976. For public officials to be entitled to representation at public expense, the litigation must (1) arise out of or in connection with the performance of their official duties and (2) serve a public purpose. Chavez v. City of Tampa, 560 So. 2d 1214 (Fla. 2d DCA 1990). See Lomelo; Nuzum; Markham v. Department of Revenue, 298 So. 2d 210 (Fla. 1st DCA 1974), cert. denied, 309 So. 2d 547 (Fla. 1975).”4
Under Thornber, a public official is not entitled to taxpayer-funded representation simply because an allegation of misconduct arises in the course of his or her public duties. Rather, the context out of which the alleged misconduct arose must also serve a public purpose. Thus, a public official is not entitled to taxpayer-funded representation simply because an allegation of misconduct arises in the course of his or her public duties; rather, the context out of which the alleged misconduct arose must also serve a public purpose.5 It is settled that a municipal corporation has the right and power to retain and pay private counsel to protect the interests of the municipality and that invasion of those interests may take the form of an attack on one or more public officers.6 In Markham v. State, Department of Revenue, 298 So. 2d 210, 211 (Fla. 1st DCA 1974), the court explicitly states:
“It is a fundamental concept of the law in Florida and elsewhere that public funds may not be expended for other than public purposes. Public officers are, of course, 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. Duplig v. City of South Daytona, Fla. App. (1st) 1967, 195 So. 2d 581.”
In Lomelo v. City of Sunrise, 423 So. 2d 974, 976 (Fla. 4th DCA 1982), the court explained:
“It is neither remarkable nor legally significant that this rule evolved from cases in which the issue is posed in terms of the propriety, after the fact, of municipalities paying legal fees incurred by public officials. The rule and its rationale apply as well pre-payment as post-payment. Thus, Shuler v. School Bd. of Liberty County, 366 So. 2d 1184 (Fla. 1st DCA 1978), involves as does our case the refusal of the body politic (a school board) to employ and pay for an attorney to represent a public official (the superintendent). Shuler exemplifies an application of the rule discussed in these earlier cases and imposes a ‘duty to pay.’”7
The Lomelo court went on to note:
“A recent pronouncement of the Third District Court of Appeal on this issue in City of Hialeah v. Bennett, 376 So. 2d 483 (Fla. 3d DCA 1979), is worth repeating here:
“’Affirmed on the authority of the rule stated as follows in Cahn v. Town of Huntington, 29 N.Y.2d 451, 328 N.Y.S.2d 672, 676, 278 N.E.2d 908, 910 (1972): “[A] municipal board or officer possesses implied authority to employ counsel in the good faith prosecution or defense of an action undertaken in the public interest, and in conjunction with its or his official duties where the municipal attorney refused to act or was incapable of, or was disqualified from, acting.” Accord, Waigand v. City of Nampa, 64 Idaho 432, 133 P.2d 738 (1943); Braslow v. Barnett, 74 Misc.2d 26, 343 N.Y.S.2d 819 (Dist. Ct. 1973); Krahmer v. McClafferty, 282 A.2d 631 (Super. Ct. Del. 1971); see City of North Miami Beach v. Estes, 214 So. 2d 644 (Fla. 3d DCA 1968), cert. disch., 227 So.2d 33 (Fla. 1969); cf. Shuler v. School Board of Liberty County, 366 So. 2d 1184 (Fla. 1st DCA 1978), cert. dismissed, 368 So. 2d 1373 (Fla. 1979).’”8
Common Law Theory Still Requires the Official to “Prevail”
In Tubbs v. Mechanik Nuccio Hearne & Wester, P.A., 125 So. 3d 1034 (Fla. 2d DCA 2013), the court ruled that “Thornber contemplates that after a voluntary dismissal a trial court must ‘determine whether the party requesting fees has prevailed.’ [568 So. 2d at 919] (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.”9
In Ellison v. Reid, 397 So. 2d 352 (Fla. 1st DCA 1981), the court noted that a “successful” outcome was required for common law reimbursement: “If a public officer is charged with misconduct while performing his [or her] official duties and while serving a public purpose, the public has a primary interest in such a controversy and should pay the reasonable and necessary legal fees incurred by the public officer in successfully defending against unfounded allegations of official misconduct.”10
There are few reported appellate cases in Florida wherein a public official either received, or did not receive, attorneys’ fees reimbursements under the common law doctrine. In roughly the past 40 years, there appear to be only five such reported opinions. In Maloy v. Board of County Com’rs of Leon County, 946 So. 2d 1260 (Fla. 1st DCA 2007), reimbursement under the common law was denied even though the commissioner won his Ethics Commission case, since a commissioner’s decision to engage in sexual relations with staff did not serve a public purpose.
In Leon County v. Stephen S. Dobson, III, P.A., 957 So. 2d 12 (Fla. 1st DCA 2007), the court found a county commissioner who successfully defended himself against criminal charges associated with his participation in the Florida Association of Counties was entitled to reimbursement of his attorneys’ fees under the common law. In Chavez v. City of Tampa, 560 So. 2d 1214, 1215 (Fla. 2d DCA 1990), a mayoral candidate’s political consultant filed an ethics complaint against a city council member for voting on an issue in which she had a private pecuniary interest. Although the court found the public official was performing her public duties under the first prong of the common law test, the court found the council member did not serve a public purpose when she voted on the matter to her own financial benefit. As a result, the court found no entitlement to reimbursement of the council member’s ethics defense legal fees. In the Thornber case, city council members’ successful action to enjoin a recall petition arose out of performance of their official duties and served public purpose, entitling the members, under the common law, to reimbursement of attorneys’ fees from the city. Finally in Lomelo, the court found that a mayor, who had been criminally charged with “corruption by threat against a public servant” for interfering in the arrest of a family acquaintance, and who was acquitted of that charge, was entitled to reimbursement of fees under the common law as the freeing of the arrested person was within the mayor’s charter powers.
None of these cases awarded fee reimbursement when the public official failed to prevail in the underlying charge, but instead elected to initially defend the case with private counsel, go on to settle the case, and perhaps even pay the plaintiff attorneys’ fees. Absent such authority, the only reasonable conclusion would be that the common law theory of public official fee reimbursement entitlement will, as with the statutory route, require a public official to have prevailed in the matter.
As discussed earlier, legal analysis also undermines a simplistic view that a dismissal in and of itself will always result in eligibility for defense fee reimbursement. In Attorneys’ Fees — The Confusion Regarding Voluntary Dismissals and “Prevailing Party” Fees, 4 Fla. Pract. Civil Procedure §1.420:44 (2016), the authors state, in relevant part:
“Close analysis of the cases suggests that the first answer [that a non-merits dismissal cannot produce a prevailing party for purposes of fee recovery under contract or statute] is better supported. The courts that have gone in another direction have tended to rely upon dicta and upon cases that either do not support the propositions on which they rely or come from courts that have later changed position. Further, it seems to the author that the first answer is the best, at least partly for a reason not addressed in any of the cases, i.e., the meaning of ‘prevailing party’ in the statute or contract giving rise to fee entitlement. It seems extraordinarily unlikely that the legislature, in the typical statute, or the typical parties contracting for prevailing party fees, would have intended to provide the remedy for anything short of a merits determination, or would have even contemplated a technical, non-merits dismissal permitting refiling, absent some express language to indicate such intent or contemplation. On the statutory side, in the face of time-worn principles that fee recovery is in derogation of common law and that statutes providing for fees must be strictly construed, it would seem that courts should be particularly reluctant to presume a statutory intent to include parties benefiting from without-prejudice dismissals within the ambit of ‘prevailing’ parties.”11
Who Applies the Common Law Theory?
Unlike the deference given to the agencies in the statutory framework, an agency or its governing board is without authority to grant reimbursement of private counsel fees based on the common law theory. This is so because a Florida governmental agency or subdivision has no common law jurisdiction.12 Therefore, a trial court, not the agency, has jurisdiction to hear common law claims.13
May an Agency Grant a Reimbursement Request Based on Equitable Considerations?
“There but for the grace of God go I” is likely not far from the minds of elected or appointed officials as they witness one of their colleagues being sued. Collegial empathy with or sympathy for the official who settles in the face of mounting defense costs is understandable. However, when a legislative body prescribes a right or duty and has established procedures and/or conditions that must be met in order for that right or duty to be triggered, a court must presume that, by logic, the legislative body did not intend for the right or duty to be triggered if the procedure has not been followed or the conditions met.
Thus, in Chavez v. City of Tampa, 560 So. 2d 1214, 1215 (Fla. 2d DCA 1990), the court reversed the trial court’s award of attorneys’ fees incurred by a city council member after she successfully defended charges of unethical conduct before the Florida Commission on Ethics. The basis for the reversal was that the city had no authority to make such an award inasmuch as the statute did not expressly authorize the award when a “civil action” was not successfully defended. The court noted:
“[F.S. §]111.07 [is] the statute under which the appellant claims she is entitled to reimbursement of her fees. This section contains precise language that fee awards are authorized ‘to defend any civil action arising from a complaint for damages or injury suffered.’ The statute clearly contemplates a judicial proceeding in a court of law, before a judicial officer, by the plain meaning of ‘civil action...for damages or injury.’”14
Based on this analysis, the court concluded that the city was, “without authority…under the statute…to make the award of fees and costs in this matter.”15
Florida’s elected and appointed officials perform a vital role for the success of our representative democracy. It cannot be seriously argued that a part of that which our society must give back to them is the comfort of knowing that if they are wrongly sued for violations of the law, that they will not have to personally pay to defend their righteous actions. However, until the legislature explicitly addresses the issue, such officials may need to make personal determinations early in a case as to whether they are confident of eventual success at trial or on summary judgment. To fail to have such conversations with their private counsel, and indeed with input from agency counsel, at the outset of litigation such as a public records suit could result in an unwise settlement causing the official to become ineligible to be reimbursed for his or her defense.
1 Ellison v. Reid, 397 So. 2d 352, 354 (Fla. 1st DCA 1981).
2 Lomelo v. City of Sunrise, 423 So. 2d 974, 976 (Fla. 4th DCA 1982); Leon County v. Stephen S. Dobson, III, P.A., 957 So. 2d 12 (Fla. 1st DCA 2007).
3 Maloy v. Board of County Com’rs of Leon County, 946 So. 2d 1260 (Fla. 1st DCA 2007).
4 Thornber, 568 So. 2d at 917-18.
5 Maloy, 946 So. 2d at 1260.
6 City of North Miami Beach v. Estes, 214 So. 2d 644 (Fla. 3d DCA 1968), cert. discharged, 227 So. 2d 33 (Fla. 1969).
7 Lomelo, 423 So. 2d at 976.
8 Id. See also Ellison v. Reid, 397 So. 2d 352 (Fla. 1st DCA 1981) (applying this rule in similar fashion).
9 Tubbs, 125 So. 3d at 1041 (emphasis added).
10 Ellison, 397 So. 2d at 354 (emphasis added).
11 Footnotes omitted. See also Kimberly J. Winbush, Payment of Attorneys’ Services in Defending Action Brought Against Officials Individually as Within Power or Obligation of Public Body, 47 A.L.R. 5th 553 (1997), noting: “Both common law and statutory law provide for reimbursement by municipalities, under certain circumstances, for attorneys’ fees incurred by public officials in defending suits against them. Typically, courts have authorized eligibility for such reimbursement only to those public officials who defend against misconduct occurring in connection with the good-faith performance of their official duties and while serving the public interest and who ultimately prevail in that underlying suit.” (emphasis added).
12 E. Cent. Reg’l Wastewater Facilities Operation Bd. v. City of W. Palm Beach, 659 So. 2d 402, 404 (Fla. 4th DCA 1995).
13 See Webb v. School Bd. of Escambia County, 1 So. 3d 1189, 1191 (Fla. 1st DCA 2009) (holding that a school district teacher criminally charged with a violation of Public Records Act could assert a common law claim for attorneys’ fees associated with her defense of the charge, but that the court, not the school board, had jurisdiction to hear the claim). An official’s counsel’s time spent establishing entitlement to fee reimbursement is not recoverable by the official. Stephen S. Dobson, III, P.A., 957 So. 2d at 12.
14 Chavez, 560 So. 2d at 1216-1217 (emphasis added).
15 Id. See also Weiner v. American Petrofina Marketing, Inc., 482 So. 2d 1362, 1364 (Fla. 1986) (The Supreme Court, in construing provisions of the Uniform Commercial Code, observed that although “general principles of law and equity are applicable to supplement the provisions of the [a statute], they will not prevail when in conflict with [the statute’s] provisions.”).
Robert Michael Eschenfelder is board certified in city, county, and local government law.
This column is submitted on behalf of the City, County and Local Government Law Section, Jeannine Smith Williams, chair, and David Miller, editor.