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

• Author: Eschenfelder, Robert Michael
• Position: Part 1 - Florida

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. [section] 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. [section] 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. [section] 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...