Payment of Legal Fees Request May Not Necessarily be a Slam Dunk Part II: The Absolute and Total Annihilation of Mandamus Argument

When this guy, Luka Doncic,  is loose in the paint--it's a sure thing.  It's  a SLAM DUNK.  Doug Underhill's argument for payment of his legal fees by the board, however, is the opposite of this.  In fact, after reading a  12-page destruction of his argument for the BCC to be compelled to pay via a writ of mandamus---it appears less like a slam dunk and more like the Washington Generals trying to beat the Harlem Globetrotters.......Good luck with that!

When Basketball phenom Luka Doncic gets free in the lane and he has the ball---yeah it is going to be a thunderous slam dunk.  Doesn't matter who he is playing or who is in his way (or under him).  He's jamming it home even over the biggest names you hear about in the NBA.  Even those guys get out of the way and accept what's coming...

A recent request for legal fee payment for Commissioner Doug Underhill's lawyer, which to board let die in silence with no action, was answered with a subsequent legal filing where it was intimated it was/should be  all but a "sure thing" these fees would/should be paid by the county.   

I never thought it was a slam dunk.    Not even close.  And I always thought the Writ of Mandamus was inappropriate--as the board has discretion and to pay these fees is no ministerial function.  So no, it wasn't going to be a sure thing slam dunk.

After all, we're not talking about Luka Doncic.

Now I have received an email containing a 12-page legal opinion on this matter supporting the board's position that the payment of fees is not guaranteed--among other arguments.  This is from Tallahassee lawyer Rick Figlio.  This opinion was prepared at the behest of a local citizen, recently provided to the County Attorneys, and also provided to the County Commissioners.

And this 12 page position paper totally and completely annihilates and destroys the weak and feckless arguments for mandamus presented on Doug's behalf by his thus far not fully paid attorneys.

Complete annihilation in stunning fashion.  You don't even need to be a lawyer to understand it--that's how well it is written.  from the document:

• In his Petition, Underhill argues that the Board has a nondiscretionary duty to pay his legal fees on the basis of the Board’s policy.  That is meritless.

• Underhill failed to comply with the procedures set forth in the policy that outlines conditions precedent to any claim for legal representation. He was required to submit a written request to the county, through the county attorney, within 10 days of knowing about the case or engaging an attorney.  He never made that written request.  I did a public records request for this specific written request last summer and Alison said there was no such request from Underhill (I have the emails in case any of you need to see them).

• Underhill argues the county is required to pay his legal fees based on the language in the policy.  This is a misstatement and mischaracterization of the facts.  He relied on the section of the policy related to county employees that states the Board will pay reasonable attorney’s fees and costs for county employees named in a civil suit.  The Petition ignores the portion of the policy that states that requests made by Commissioners will be considered on a case-by-case basis. Consideration on a case-by-case basis means you have discretion, not an obligation to pay his legal fees (assuming he followed the policy of making the written request, which he did not).

• Mandamus is a civil remedy to compel the county to discharge a ministerial duty. To prevail, Underhill must plead ultimate facts showing (1) the county has a clear legal duty to reimburse his legal fees; (2) Underhill has a clear legal right to have the his legal fees reimbursed; and (3) Underhill does not have another legal remedy available. Additionally, if Underhill cannot demonstrate satisfaction of all conditions precedent (he failed to follow the policy) to legal entitlement, mandamus is unavailable. Similarly, even if Underhill can demonstrate eligibility to the reimbursement of his legal fees, eligibility is not the same as a clear legal entitlement to that reimbursement, and the former cannot serve as the basis for a petition for mandamus.  

• Under the policy, the Board could determine that Underhill acted in bad faith in making the comments protected by absolute immunity in the Defamation Suit and find him ineligible for attorneys’ fees. The Board could also determine that, as a commissioner, the facts at issue in the Defamation Suit, do not warrant expenditure of public funds to defend the suit. If Underhill had followed the procedural requirements of making a request for attorneys’ fees, the Board could have chosen to use in-house representation, or prospectively pay for legal counsel. The Board could have also denied Underhill’s request based on the fact it exceeded the $250 per hour limitation on reasonable attorneys’ fees.

 Read the 12 page "Document of Legal Destruction" here.