Can a Florida city pay a councilmember's legal fees for a lawsuit the member personally filed challenging a candidate's residency?

Subject

Municipalities -- Attorney's Fees

Plain-English summary

The City of North Miami Beach wanted to reimburse one of its councilmembers for legal fees. A police-department check of candidates' qualifications had been inconclusive about one candidate's residency. The councilmember then did their own online search, found evidence the candidate had lived in another town within the year before qualifying, and personally filed suit to block the counting of votes for the candidate and for a declaratory judgment on her eligibility. A court found the candidate's testimony not credible and that she lacked the required residency. The city, supporting the suit, asked the AG whether it could pay the councilmember's legal fees.

The AG said no. Florida recognizes a common-law right of public officials to legal representation at public expense, but only under the two-part test from Thornber v. City of Fort Walton Beach: the litigation must (1) arise out of or in connection with the performance of official duties and (2) serve a public purpose. The AG found no statute or case allowing reimbursement to an official for prosecuting (rather than defending) an action. Even assuming enforcing the city's residency charter served a public purpose, the suit failed Thornber's first prong, because a residency challenge a sitting councilmember brought on their own did not have the needed nexus to the councilmember's official duties. The AG added that a city does have power to file suit for a municipal purpose, but that is action for the commission to take as a collegial body by majority vote, not something a single member can initiate. So the city could not reimburse the individually filed suit.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

When can a Florida city pay an official's legal fees?
The opinion applies the Thornber test: public payment of a public official's legal representation requires that the litigation arise out of or in connection with the performance of official duties and serve a public purpose. Both prongs must be met.

Does enforcing the city charter count as serving a public purpose?
The opinion accepts that enforcing the city's charter and ordinances may serve a public purpose, which would satisfy Thornber's second prong. But that alone is not enough; the first prong, a nexus to the official's duties, must also be met, and here it was not.

Why didn't the councilmember's residency suit qualify?
Because a legal challenge to a candidate's qualifications, brought by a sitting councilmember on their own initiative, did not arise out of or in connection with the performance of that member's official duties. The opinion also notes the common-law right has been recognized for officials defending against charges from their official conduct, not for prosecuting an action against another party.

Could the city itself have brought the suit?
Yes, in principle. The opinion explains a municipality has power to file suit for a municipal purpose, but official action by a collegial body is taken by majority vote, not at the initiative of a single member. A suit one councilmember filed alone is not city action.

Background and statutory framework

Florida's common law lets public officials obtain legal representation at public expense when they are sued over their official conduct, subject to the limits the Supreme Court set in Thornber v. City of Fort Walton Beach. Thornber requires that the litigation arise out of or in connection with the performance of official duties and serve a public purpose. Earlier AG opinions, like AGO 91-59, applied that standard to deny reimbursement where the underlying charges related to conduct outside the official's duties.

The municipal-authority side of the analysis rests on Florida's municipal-powers statutes. Section 166.021(1) recognizes that municipalities have broad governmental, corporate, and proprietary powers to act for municipal purposes. Section 166.041(4) sets the rule for how a governing body acts: a majority is a quorum and an affirmative vote of a majority of the quorum is needed to adopt an ordinance or resolution. Read together, these provisions told the AG that filing suit for a municipal purpose is collegial action, not something one member's solo lawsuit satisfies.

Citations

• s. 166.021(1), Fla. Stat. (broad municipal powers for municipal purposes)
• s. 166.041(4), Fla. Stat. (quorum and majority-vote requirements for governing-body action)
• Thornber v. City of Fort Walton Beach, 568 So. 2d 914 (Fla. 1990) (two-part test for public payment of official legal fees)
• Markham v. State, Department of Revenue, 298 So. 2d 210 (Fla. 1st DCA 1974)
• Maloy v. Board of County Commissioners of Leon County, 946 So. 2d 1260 (Fla. 1st DCA 2007)
• Ops. Att'y Gen. Fla. 91-59, 97-61

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/municipalities-attorneys-fees
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1577

Original opinion text

Ms. Darcee S. Siegel

City Attorney

City of North Miami Beach

17011 Northeast 19th Avenue

North Miami Beach, Florida 33162-3100

Dear Ms. Siegel:

On behalf of the City of North Miami Beach, you ask the following question:

May the city reimburse legal fees incurred by an individual councilmember for challenging a candidate’s qualifications to run for the city council when the suit was filed after discovery of credible evidence that the candidate was not a bona fide resident of the city as required by the city’s charter?

In sum:

Reimbursement of a councilmember’s legal fees may be authorized only when the litigation arises from the exercise of official duties and fulfills a public purpose. While a city has the authority to bring suit to fulfill a municipal purpose, such action must be taken by a majority of the governing body and not at the initiative of an individual councilmember.

You state that a routine investigation of candidates’ qualifications by the city’s police department was inconclusive as to one candidate’s residency. An individual councilmember, thereafter, conducted an online search and discovered evidence that the candidate resided in another town within the 12 months prior to filing her qualifying papers. The councilmember filed suit to enjoin the counting of votes for the candidate and for declaratory judgment as to the candidate’s qualification to run for office. After an expedited hearing, the court found the candidate’s testimony to not be credible, the candidate failed to show evidence of the required residency, and that competent evidence showed that the candidate resided in another city. The city now wishes to reimburse the councilmember for the legal fees incurred and as support, asserts that it supports the filing of the declaratory action.

While the courts of this state have recognized a common law right of public officials to legal representation at public expense to defend themselves against charges arising from the performance of their official duties and while serving a public purpose,[1] I am not aware of, nor have you drawn my attention to, any statute or case law suggesting that an individual councilmember is entitled to reimbursement of legal expenses incurred in prosecuting an action against another party.

In Attorney General Opinion 91-59, this office considered whether a county was required to reimburse a county commissioner for legal fees incurred in defending the commissioner’s qualifications to run for office. The opinion discusses a decision of the Supreme Court of Florida addressing the payment of attorney’s fees incurred by public officials. In Thornber v. City of Fort Walton Beach,[2] the Court set forth the standard that "[f]or 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." Applying this standard to the question presented, this office concluded that the charges against the county commissioner did not arise from misconduct while performing the official duties of the office, but rather occurred prior to the commissioner’s election to that office. Accordingly, the commissioner was not entitled to reimbursement for attorney’s fees incurred in defending an action challenging his or her qualifications to run for office.

You assert that the suit for declaratory judgment of a candidate’s residency served a public purpose in assuring that the city’s charter and ordinance, requiring residency in the city during the 12 months prior to qualification, were not violated. While the enforcement of the city’s charter and ordinances may fulfill a public purpose, the second prong of the standard for reimbursement of attorney’s fees set forth in Thornber requires that the action arise out of or in connection with the performance of official duties. A legal challenge to the qualifications of a candidate brought by a sitting councilmember would not appear to satisfy the Thornber test requiring a nexus to the performance of the sitting councilmember’s official duties.

The filing of suits is an action which may be initiated and pursued by the city commission as a collegial body.[3] However, official action by a collegial body is taken by majority vote[4] and not by the initiative of a single member.[5]

Accordingly, it is my opinion that the city may not reimburse legal fees incurred by a councilmember individually prosecuting an action challenging a candidate’s qualifications to run for the city council when such action was not taken while performing the official duties of the office.

Sincerely,

Pam Bondi

Attorney General

PB/tals

[1] See, e.g., Markham v. State, Department of Revenue, 298 So. 2d 210 (Fla. 1st DCA 1974); Ferrera v. Caves, 475 So. 2d 1295 (Fla. 4th DCA 1985). And see Maloy v. Board of County Commissioners of Leon County, 946 So. 2d 1260 (Fla. 1st DCA 2007) (analyzing interplay of doctrine of sovereign immunity and common law right of public officials to receive legal representation at taxpayer expense in defending themselves against litigation arising out of their official duties and while serving a public purpose).

[2] 568 So. 2d 914 (Fla. 1990).

[3] See s. 166.021(1), Fla. Stat., recognizing that municipalities have "governmental, corporate, and proprietary powers to enable them to conduct municipal government, perform municipal functions, and render municipal services, and may exercise any power for municipal purposes, except when expressly prohibited by law."

[4] See s. 166.041(4), Fla. Stat., providing:

"A majority of the members of the governing body shall constitute a quorum. An affirmative vote of a majority of a quorum present is necessary to enact any ordinance or adopt any resolution; except that two-thirds of the membership of the board is required to enact an emergency ordinance. On final passage, the vote of each member of the governing body voting shall be entered on the official record of the meeting. All ordinances or resolutions passed by the governing body shall become effective 10 days after passage or as otherwise provided therein."

[5] Cf. Op. Att'y Gen. Fla. 97-61 (1997) (attorney for a school board represents the board as a collegial body and acts at the request of the board as a collegial body and not at the request of an individual member).