When Do We as Public Officials Deserve Protection and Taxpayer-Funded Legal Defenses?

Under current precedent set in the Scott Miller v Doug Underhill case--it appears as if anything and everything we say (as elected officials) directed toward any citizen, constituent, or business entity in any venue and under any circumstance enjoys absolute immunity from prosecution no matter what---if any sort of a tenuous--even circuitous--line can be drawn between such statements and our official duties and responsibilities.  Even if what we say is untrue, libelous, and intended to intentionally inflict damage on the recipient. 

Wow.  That's powerful.  Absolute power.  

In fact--one attorney (a person for whom I have tremendous respect) intimately familiar with that ruling even said to me "Jeff, this is a win for you, too, as an elected official--extra protection for you from malicious prosecution."  He's not wrong about that.  

But in pondering it more--why do I need that if I am doing my job and not involved in nefarious conduct or purposely libeling, slandering, and proactively picking fights with citizens, unprovoked, online or in person?  Answer--I don't need it, I don't want it.  Never have.

If I'm minding my own business and you come up to me and punch me in the face unprovoked (which I'm certain some would love to do) and I subsequently put my knee through your skull in response--that's self-defense and 100% understandable.  If I'm minding my own business at a mall and someone much larger and stronger rushes at me and threatens to kill me with a wielded knife and I don't wait for what his devastating attack could do to me and instead I double tap him with my .380--that would more than likely be a stand your ground case in Florida (well, depending on what the attacker looked like it should be---- but might not be.......). 

 

But---if I get drunk one night and go to Wild Greg's downtown and start throwing punches at the door man because says he doesn't like my politics and says he disagrees with my votes--and in the process I get my ass kicked and draw a lawsuit----That's on me and I get what I deserve. 

Or try these disgusting, homophobic, purely fictional examples of lies (or worse) that could happen but should NEVER happen.  Imagine two PROMINENT area citizens-----one a businessman one an attorney-----who from time to time have worked for or with the county on issues, projects, or initiatives. (cue up the tenuous connection to county business...)  

So what if a commissioner (who really dislikes them because they financially supported an opponent--or for other real or perceived slights) goes online and makes statements that are UNTRUE and damaging about such individuals, gaslights them or worse---DOXES them, under the cover story that they are unworthy of working with county projects, by saying something like:

"That XXXXXXXXXXX guy is a charlitan, a cheat, a liar and even though hs is married he is actually a homosexual simply living in the closet"

"That XXXXXXXXXXXX guy is an alcoholic drunk who is screwing his secretary behind his wife's back while serving as a deacon in his church"

"That's Horrible!!"  "That's Outrageous!!"  "That could never happen!" some might naturally say--appaled at even the thought of an action so shameful targeting upstanding community leaders and citizens by an elected official.  

But it could, and under the current protocol such accusations (true or not) would never need to be adjudicated or ruled upon by a court as the commissioner could (falsely) claim it was within the "realm" of his public duties and served a public purpose of vetting partners who from time to time work with the county.  Then, poof, the allegation is gone because such an official has "Absolute Immunity"--

No, that's crazy.  We should never, no matter who we are, get away with lying about someone intentionally unprovoked and with malicious, reckless, nefarious intention.

So no, lying about people online proactively is not an official government function that deserves one cent of taxpayer money to defend.  Just like picking fights.  That's my unwavering position, period.

Here's when an elected official deserves a taxpayer funded defense, in my humble opinion only.

--Commissioner is accused of committing a crime associated with a decision he voted for related to the county

--Commissioner is accused of harming a business or individual due to a zoning vote he made

--Commissioner is accused of a crime based upon any vote the board upon which he sits lawfully made

--Commissioner is sued for something that he did that can be proved was specifically and completely a part of his official constitutional duty and role related to official duties.

--Commissioner defending himself, utilizing free speech, from a directed, litigation-based attack from the media or any special interest entity based upon specific votes, positions, opinions or actions such commissioner took DIRECTLY related to the performance of his official duties and specifically NOT a willful, malicious, reckless and directed tort action.

Period.

--Commissioner gets a DUI---HE PAYS

--Commissioner arrested for theft---HE PAYS

--Commissioner accused of/found guilty of a crime found to be not associated in any way with the necessary performance of his duties---HE PAYS

--Commissioner purposely, proactively and  intentionally libels, slanders, and/or attacks citizens with unfounded, unproven defamatory allegations---HE PAYS unless and until  he prevails.

This interesting post discusses the local case and also a similar case between a South Florida Mayor and Police Chief  in which the mayor prevailed in a defamation case brought against him for derogatory comments he made in a blog about a local police chief.  (in that case--the back and forth was between two public officials--mayor and police chief-- so the similarities are not identical--as public officials are much more susceptible to attacks than are average citizens and business interests--although I do not believe that nuanced distinction was used as a part of the decision in De Castro v. Stoddard.)

So the idea that absolute protection for elected officials for spoken/written allegations toward citizens and businesses-- libelous and slanderous-- directed toward anyone must be maintained in order not to have a "chilling effect" is one I disagree with vehemently.  But it is currently the law of the land, apparently.

Everyone knows free speech has limitations though:  You cannot yell "Fire" in a crowded theater, you cannot threaten the president, and attack speech on some religions (Ask Salmon Rushdie, Trey Parker and Matt Stone) has been officially verboten for decades as are the use of some specific, disgustingly racist words by caucasian people. (Unless their name is Andy Marlette [they, them, theirs]) 

And the list of off-limits speech continues to grow in our culture, like it or not. 

So here's the hypothetical for you:   Is it really accptable for me to provoke fights with, then subsequently intentionally lie about, a person or business to a point and with the intention that it damages them simply because I'm an elected official? Should the unprovoked bald-faced lies I tell about a business or individual never even be addressed or adjudicated for veracity before I am excused for this behavior by some immunity defense that trumps the truth and reality?

Think on that.

And on this:

"There is no public purpose served by protecting guilty officials from prosecution." 

 

Legal Fee Reimbursement Will be Requested by Commissioner Underhill

How much will it cost to reimburse the legal fees of a commissioner who prevailed in a lawsuit filed against him?

Upon hearing about the dismissal of the defamation case against Commissioner Underhill last week, our attorney notified us that the issue would more than likely be on the board's agenda for our meeting on the 17th of this month.

This does not surprise me, as the issue between Commissioner Underhill and the Plaintiff was settled via a summary judgment in Commissioner Underhill's favor.

And I have confirmed with knowledgeable staff on this that the request for reimbursement is coming, it will be asked of the board.  So far, though, nobody has seen an invoice or an amount paid for this victory.

I do know that the discussions about whether or not to pay the legal fees became heated several months back;  many in the public were opposed to paying these fees, as the thought process then was that the conduct at issue which drew the suit appeared to be outside of the "duties of a commissioner."

But with this ruling and with this order--that previously accepted line of thinking might be changing (which, incidentally, benefits all public officials that are outspoken on social media).

From the judge's order in Commissioner Underhill's Ruling:

"It is not beyond the orbit of the county commissioner to engage in discussions with the public regarding matters pertaining to policy. Denial of immunity in the context of this mutually desired debate, including statements intended to undermine the messenger to attack the message, would relegate the immunity to be so uncertain to chill communication.....

   ....The absolute privilege of affording immunity has  been  proven"

Those are pretty strong words from the judge----yet I anticipate much public comment on this prior to a vote by the board on paying the legal fees.

I anticipate much discussion among the board members, too.

If the board votes to pay the fees, I think the matter ends abruptly.

If the board votes NOT to pay the fees, I believe we, ourselves, would be subject to a lawsuit to compel us to pay.

What else could happen?  Well, the board could wait to see if any appeal would be filed to this judge's ruling--and wait for final disposition of the appeals.  I guess it is not outside the realm of possibility that the Board could disagree with the Judge's opinion that the conduct that drew the suit was within the scope of this commissioner's duty?  That seems unlikely though.

Much of this could hinge on how much the fees are/were for this victory---that's my opinion.  Could it be less than $5,000.00?  Nobody knows.

Regardless of cost, regardless of what anyone thinks about this commissioner or this suit--this was a very profound ruling in today's ever-changing political world as it collides with the world of social media and free speech.

It will be an interesting discussion on the 17th.