Repayment of Public Official's Legal Fees: The Misconduct At Issue MUST be Ruled-Upon First

Both sides have compelling arguments, but only one side will ultimately prevail....

In the fascinating, ongoing legal saga of one (now former) County Commissioner's quest to have the public taxpayer foot his legal bills--two recently filed briefs drill down on the issue of the misconduct at the center of the matter specifically.

Both of these legal briefs have now been filed with the 1st District Court of Appeals in Tallahassee.  Both are exceptionally well-written, and both make several interesting yet diverging points and arguments about the appropriateness and the legality of the repayment.

After reading the pro-repayment filing--one might naturally assume it is completely appropriate for the taxpayers to repay the costs of the legal bills immediately.

But after reading the county's position on the matter and filing--the one lingering, intriguing point that stands out in bold to me is this:  Repayment of a Public Official's legal fees must not occur until the issue at the center of the matter, the misconduct which triggered the litigation initially, is decided by the court first--- and that the public official is exonerated.

And that has yet to happen.

The current case is unusual and odd in that the merits of the original conduct which triggered the lawsuit have never been addressed by the court.  It was never either proven to be valid, public part of a commissioner's necessary work nor was it disproven and deemed an intentional, willful malicious tort action instigated by a sitting member of the county commission outside the scope of his duties.

The trial court did not address the action nor the validity of the claim of defamation--but rather simply stated the conduct at issue was a part of the commissioner's duty and subsequently was silent and didn't speak specifically to the defamation claim by the area citizen in dismissing the case---- stating an elected official has broad, almost absolute  immunity from a defamation suit when and if he is/was acting in the public interest and within the scope of his job. 

On the other side of it--the other brief (county's side) wants the original conduct which drew the suit to be ruled upon first before public monies can/should be expended to pay for the public official's legal defense.  Because if the conduct at issue was malicious, reckless and an intentional tort--this would negate the obligation to pay for the legal costs as such behavior would not, could not be construed as an official acting in the public's interest and within the scope of his office.

So it is really interesting, and again------both briefs are compelling.

But the seminal question that must be answered has not been:  Was this defamation and libel?  Or was

Appeal will Move Forward--No Cash for Doug

The Escambia Board of County Commissioners voted 4-1 to hire a first rate legal team to appeal the recent circuit court decision directing us to pay Doug Underhill's $24K legal defense bill--a bill that was generated initially by Underhill's alleged racially charged, venom-infused, libelous social media attack on a local businessman.

Yesterday the board voted 4-1 to move forward with an appeal of Judge Shakleford's order directing that we pay Doug Underhill's legal fees of more than $24K.

First of all--I do believe Doug should pay his attorney for the work done on his behalf.  That should happen immediately regardless of what the eventual disposition of this matter becomes.  Maybe Doug has alreadt paid his attorney?--I don't know but if he hasn't yet--he should.  The attorney did his job and should be paid.

But the idea that the taxpayers have to cover this cost is the issue that is the subject of contention.

Our policy states the board "may" pay the legal fees of a commissioner and does not say we "shall."  We have discretion, there is a distinction there.  Obviously if the conduct at issue is done in the course of one's duty as a commissioner--it is highly likely that the fee would be paid by the county once a commissioner is exonerated of the charges.  Or the fees could possibly be covered even beforehand, prospectively.

But there are a couple of tests that would have to be met before a public dollar payment would ever be appropriate.  A two-pronged test.

1.  Was the conduct at issue that drew the lawsuit done in the course of the commissioner's official duties?

2.  Did the conduct at issue serve a public purpose?

Neither of those tests were passed, so far as I am concerned, in the Scott Miller case.  The Judge in that case (and I'm paraphrasing) essentially ruled that commissioners have  "Blanket Immunity" to say whatever they want when off the dais and on social media like facebook or twitter.  Blanket immunity to say anything about anybody no matter what.  Blanket Immunity for elected officials to essentially libel businesses and community members?

That was the ruling.  

Many disagree and believe it to be badly flawed.

And it apparently--this order in the Miller Case---- subsequently eclipsed the need for a more specific, nuanced ruling by the judge in that case on the all-important two-prong test above.  Those two prongs were not addressed but rather glossed over in favor of the blanket immunity concept while intimating the conversation on facebook was part of a commissioner's duty.  (no mention of the public purpose prong)

Stick with me though, because this next part is opaque but it is nvertheless important.

The two prong test remains important because to pass this test allows us, the BCC,  to pay appropriately from county funds if we decide to do so.   It isn't automatic.  But the ruling jumps our policy to the common law.  

And I have not seen a ruling anywhere saying "Doug Underhill's back and forth with Scott Miller on Facebook served the public interest and was done in the course of his official duties as a commissioner."  But that's precisely what Judge Shakleford's ruling (written by Doug's attorneys and signed by the judge, by the way) states emphatically--based upon the earlier ruling.

So it is fatally flawed in my opinion.  Fatally flawed.

Because to jump over our existing county policy, usurp our discretion and consideration, and never actually fully and completely answer the all-important two-prong Thornber test and instead simply say (and I'm paraphrasing) "Common Law dictates that a public official's legal fees be paid when such a public official is exonerated of the alleged misconduct that necessitated the payment for a legal defense in the first place" would require that the actual, alleged misconduct be adjudicated first.  And it never was--it was glossed over and not addressed.  Remember--It was eclipsed with a "blanket immunity" ruling.

So the seminal, open question that needs to be answered and has not yet been answered and ruled upon by any judge is this:  Is one commissioner's alleged act of libeling a white pensacola business owner and his company by accusing such a businessman of being a racist who is trying to injure physically

Commissioner Underhill Will Be Requesting a County-Funded Legal Defense

The board has been advised via an email from this Saturday that at an upcoming meeting we will be asked to approve a county-funded legal defense for Commissioner Doug Underhill.  He is currently being sued for libel.

Two years ago the board was asked to provide a legal defense for Doug Underhill and at that time the board voted no.  (That issue discussed at length here).

This time around, the circumstances are different.  Nevertheless-I'm not convinced that there are three votes on the board to fund this.  We will see this week I suppose.

(I've been contacted by numerous citizens who have told me NO WAY to paying legal fees)