When is a public official entitled to prevailing party attorneys' fee reimbursement in Public Records Act cases?

• Author: Eschenfelder, Robert Michael
• Position: Part 2 - Florida

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 Su preme Court in Thornher 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. Carhonelli, 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 Thornher, 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...