When is it Appropriate for the Taxpayers to Pay Legal Bills for a Commissioner?

Should the taxpayers pay for the legal defense of a County Commissioner?

I've been sued three times in my life.  Each and every time it sucked.

I was sued by a drunk-driver's insurance company 4 years after the drunk-driver totaled my VW rabbit in 1985 on Navy Blvd.  State Farm paid for my representation and settled the claim in 1989.

I was sued in 2002 over an alleged ADA violation in a retail space I rented in San Diego California.  I paid more than $30K out of my pocket to correct the facility deficiencies and to settle the suit.  Lloyd's of  London, my commercial liability insurance carrier at the time, initially refused to provide defense or coverage -- so I hired a lawyer to sue them for bad faith and they begrudgingly sent some money to help defend what was a frivolous lawsuit.  It sucked. It sucked badly.

I was sued by an individual from Polk County Florida in my official capacity as a school board member over our Board's refusal to comply with what turned out to be an unlawful public records request made of the Escambia County School District in 2009.  In this instance, as a sitting school board member, the suit was brought against me for something I did in my official capacity as an elected official---and therefore the school district provided a legal defense.  We were victorious in this matter.

I list these three items because the circumstances of a lawsuit dictate who pays for legal defense.

Doug Underhill, the sitting Commissioner for Escambia County in District 2, is seeking taxpayer funding of his legal defense for a current suit that is being brought against him and another individual for an incident that was not a part of an official act.  The revelation of the private chat occurred after Doug was a commissioner, however the chat occurred before Doug was a commissioner.  This is a sticky wicket for sure--and I understand the request for coverage but before coverage is provided, there are some serious questions that must be asked, because to pay for these fees, if in contravention to statutes, puts commissioners at risk of making an illegal expenditure.

I have done significant reading and research on this issue, and I do not feel we can legally justify paying Commissioner Underhill’s legal fees in connection with the lawsuit by Gene Valentino—because the action that brought the litigation was not done in connection with any official duty by Doug ( he was not elected to the position when the action at issue occurred) and I don’t believe a legitimate case can be made that the taxpayers via the BCC paying for Doug’s defense serves any legitimate public purpose.  Both prongs must be met for a public official to be provided with legal defense paid from public monies.

 111.07 Fl Statutes, AGOs  91-59 and 2013-15 as well as Thornber vCity of Fort Walton Beach speak to this topic.

Even though Doug has stated at a previous meeting (July 26th) that he would be paying for his own legal representation in this matter.....

......I get it that he is able to change his mind.  But just because he has changed his mind doesn't change the fact that we have to be smart and we can't violate law.

I’ll be suggesting that the board move very cautiously should we even entertain the idea of saying yes to paying Commissioner Underhill's legal fees.  I’ll suggest that we first seek an opinion from the comptroller-as she has potential liability under Ch 129 (129.09)-so we should ask for her opinion on whether or not she feels this is indeed an appropriate expenditure;  I will want her on board before action is taken. 

A Clerk of the Court has liability under 129.09 for paying an illegal charge.

Additionally, I believe an Attorney General’s Opinion should be sought by the BCC asking about the legality of this expenditure specifically before the board takes any action; we have liability that includes potential removal from office for malfeasance under 129.08 if we “pay an illegal charge against the county.”  Doug wasn’t the commissioner at the time of the event, and the defense of what he is being sued for does not serve a public purpose so far as I can tell.  I don’t feel it is appropriate to pay his fees for that case, and moreover I think it could be illegal to do so.

A County Commissioner has liability under 129.08 for paying an illegal charge against the county.