Factors to reimburse public official for legal defense

December 4, 2017

In her review of whether Escambia County should pay for Commissioner Doug Underhill’s legal defense, Senior Assistant AG Teresa Mussetto reviewed the applicability of the common law principles regarding the reimbursement of fess for public officials who successfully defend against unfounded allegations of official misconduct set forth in Thomber v. City of Ft. Walton Beach (Fla. 1990). See OAG Opinion.

Thomber v. City of Ft. Walton Beach was one of the cases Pensacola City Attorney Lysia Bowling used to justify the city’s payment of Mayor Ashton Hayward’s legal fees in federal bribery probe. She also cited Lomelo v. City of Sunrise (4th DCA 1983) that said the city was obligated to pay for the legal representation of a public official “where the conduct complained of arises from the performance of his official duties.” See Memo_9-17-17.

Mussetto said that Thomber v. City of Ft. Walton Beach established the acts involved must purportedly arise from the performance of his official duties. However, a public official is not entitled to taxpayer-funded reimbursement simply because an allegation of misconduct arises in the course of his public duties. The alleged misconduct must also serve a public purpose.

Mussetto asserted that four questions must be answered:

1) Was the official’s successful defense against the charges undisputed?
2) Did the challenged acts arise out of the official’s performance or public duties and serve a public purpose?
3) Is the substance of the litigation of interest to the administration of the business of the prospective payor (City of Pensacola or Escambia County)?
4) Did the prospective payor (City of Pensacola or Escambia County) authorize the challenged acts?

In Underhill’s circumstance, Mussetto believed none of the questions were answered affirmatively.

Bowling told Inweekly that she based her analysis and recommendation to pay the mayor’s legal bills on the letter received from the mayor’s attorney. See BLletterHayward.

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