Alabama Advisory Opinions August 18, 2020: AGO 2020-049

Advisory Opinion Text

Honorable Mary Bishop Roberson

Circuit Clerk

Lee County Circuit Clerk

2311 Gateway Drive, Suite 104

Opelika, Alabama 36801

Circuit Clerks - Absentee Election Manager-Circuit Clerk Fund - County Commissions - Attorneys Fees - Lee County

A circuit clerk sued in his or her official capacity as circuit clerk shall be represented by the Attorney General or his or her designee.

Once the Attorney General determines that litigation against a circuit clerk sued in his or her official capacity as AEM concerns the interest of the state, the AEM shall be represented by the Attorney General or his or her designee.

A county commission may, in its discretion, reimburse the circuit clerk for legal expenses paid in defense of a lawsuit relating to his or her duties as absentee election manager.

A circuit clerk that is sued in his or her official capacity may use monies from the circuit clerk's fund to pay for attorney's fees and related legal expenses incurred in defending the lawsuit.

Dear Mrs. Roberson:

This opinion of the Attorney General is issued in response to your request.

QUESTION ONE

If a circuit clerk is sued civilly in his or her official capacity as circuit clerk what government entity is responsible to represent him or her or provide a defense on his or her behalf or retain other counsel to provide a defense on his or her behalf if a conflict exists or arises, regardless of the claims in the suit?

FACTS AND ANALYSIS

Your request states that you were recently sued in federal court in your official capacity as the Circuit Clerk of Lee County, and that the lawsuit specifically covers your statutorily prescribed duties as the absentee election manager ("AEM"). You additionally state that the lawsuit names several defendants including the Governor, the Secretary of State, the Attorney General, and other circuit clerks. You question which government agency, if any, is responsible for providing you with legal representation or reimbursement for your defense.

An "official capacity suit" is defined as "[a] lawsuit that is nominally against one or more individual state employees but that has as the real party in interest the state or local government." Suit-official capacity suit, Black's Law Dictionary 1663 (10th ed. 2014). A circuit clerk is elected by the qualified electors in each county for a term of six years but is considered a state officer. Ala. Const, amend. 328, § 6.20(b); Opinion to Honorable Mary C. Capps, Administrator, Crenshaw County Commission, dated November 25, 1986, A.G. No. 1987-00054 ("...a circuit clerk is considered a state officer under the Judicial Article.").

The Attorney General is required to provide legal representation for a state officer. The duties of the Attorney General are set forth in section 36-15-1 of the Code of Alabama, and section 36-15-1(13) states as follows:

(13) Any statute to the contrary notwithstanding, no attorney shall represent the State of Alabama, or any agency, department, or instrumentality of the state in any litigation in any court or tribunal unless the attorney has been appointed as a deputy attorney general or assistant attorney general. Nothing in this section shall prevent the Governor from employing counsel pursuant to Section 36-13-2.

Ala. Code § 36-15-1(13) (2013) (emphasis added). A plain reading of section 36-15-1(13) indicates that only attorneys designated as a deputy attorney general or assistant attorney general may represent the state or an agency, department, or instrumentality of the state. Thus, a circuit clerk, sued in his or her official capacity, shall be represented by the Attorney General or his or her designee.

CONCLUSION

A circuit clerk sued in his or her official capacity as circuit clerk shall be represented by the Attorney General or his or her designee.

QUESTION TWO

If a circuit clerk also serves as an AEM and a civil lawsuit is filed seeking to enjoin him or her from performing his or her statutory required duties as AEM, what government entity is responsible to represent him or her or provide for a defense on his or her behalf?

FACTS AND ANALYSIS

The answer to your second question hinges on the nature of the AEM. Is an AEM a county official or a state officer?

The position of AEM is created in section 17-11-2 of the Code. That section states as follows:

In each county there shall be an "absentee election manager," who shall fulfill the duties assigned by this chapter. The circuit clerk of the county shall, at his or her option, be the absentee election manager. If the circuit clerk of the county declines the duties of absentee election manager, the appointing board shall thereupon appoint an absentee election manager, who shall be a person qualified by training and experience, who is a qualified elector of the county and who is not a candidate in the election to perform the duties assigned by this chapter. The county commission shall designate the place or office where such duties shall be performed. Such place or office shall be open on the days and during the hours as that of the circuit clerk prior to each election. Any person so appointed shall have all the powers, duties, and responsibilities of the circuit clerk for the purposes of this chapter, including the power to administer oaths. Such powers, duties, and responsibilities shall terminate when the election results are certified. The absentee election manager or circuit clerk shall be entitled to the same compensation for the performance of his or her duties as is provided in Section 17-11-14.

Ala. Code § 17-11-2 (2006) (emphasis added). "The county commission shall determine the amount of compensation to be paid to the AEM. . . [and] shall be at least fifty dollars per day." Ala. Code § 17-11-14 (Supp. 20109) (emphasis added). "The amount . . . shall be paid from the county treasury." Id. Thus, it is the county commission who provides the office, determines the compensation, and pays the compensation of the AEM. From these authorities, one could easily conclude that the AEM is a county official.

On the other hand, the circuit clerk, a state officer, has the statutory right to serve as the AEM, unless disqualified. Ala. Code § 17-11-2 (2006) Should he or she decline to serve as the AEM or be disqualified, the appointing board, comprised of the circuit clerk, sheriff, and probate judge, appoints an alternate AEM. Id.; Ala. Code § 17-1-2(1) (2006). Indeed, although the county commission compensates the AEM, the state reimburses the counties for election expenses. Ala. Code § 17-16-4 (2006); Ala. Code § 17-16-4 (Supp. 2019). Thus, AEMs, at least to some degree, derive their authority and compensation from the state.

It is the manner that counties are reimbursed for election expenses that underscores the dual nature of the AEM position. The state reimburses "all sums expended by the county in . . . conducting an election in which only federal and state offices are nominated or . . . elected." Ala. Code § 17-16-4 (Supp. 2019) (emphasis added). If, however, the ballot includes the election of "county officials," the state reimburses "one half of all sums expended . . ." Ala. Code § 17-16-4 (2006) (emphasis added); Opinion to Honorable Reese McKinney, Montgomery County Probate Judge, dated March 25, 2009, A.G. No. 2009-056.

Thus, the nature of the AEM position depends upon the offices listed on the ballot in the election for which the AEM is serving. Some elections may be for county offices in which the state only has a minimal interest. Other elections may include state and federal offices in which the state has a significant interest. The Attorney General is empowered to "attend to all cases ... in which the state may be in any manner concerned . . . ." Ala. Code § 36-15-1 (2013). Moreover, "All litigation concerning the interest of the state . . .shall be under the direction and control of the Attorney General." Ala. Code § 36-15-21 (2013).

Expounding on this principle, the Alabama Supreme Court has stated the following:

The Attorney General shall have and retain all of the powers, duties, and authority heretofore granted or authorized by the constitution, statutory law, or the common law. The most far-reaching of the attorney general's common-law powers is the authority to control litigation involving state and public interests.... As the state's chief legal officer, "the attorney-general has power, both under common law and by statute, to make any disposition of the state's litigation that he deems for its best interest.... [H]e may abandon, discontinue, dismiss or compromise it." In addition to having authority to initiate and manage an action, the attorney general may elect not to pursue a claim or to compromise or settle a suit when he determines that continued litigation would be adverse to the public interest. Most courts have given the attorney general a broad discretion ... in determining what matters may, or may not, be of interest to the people generally.

Ex parte King, 59 So.3d 21, 27 n.4 (Ala. 2010) (internal citations omitted) (emphasis added). Therefore, if a circuit clerk is sued in his or her capacity as an AEM and the Attorney General determines that the lawsuit relates to a state interest, then the Attorney General may provide the circuit clerk with legal representation. Ala. Code § 36-15-1 (2013).

Should the Attorney General decline to represent the circuit clerk in a lawsuit arising from actions taken as an AEM, then the county may elect to provide representation to the circuit clerk as AEM. Although the county commission may pay for the legal defense of an AEM, be it the circuit clerk, or another, the county commission is not legally required to do so. The authority for a county commission to pay for the cost of a county official to defend a lawsuit is found at section 11-1-9(a) of the Code of Alabama. Section 11-1-9(a) states as follows:

(a) Any law to the contrary notwithstanding, the county commission of any county of the State of Alabama may, in its discretion, defray the costs of defending any lawsuit brought against any county official when such lawsuit is based upon and grows out of the performance by said official of any duty in connection with his office and does not involve a willful or wanton personal tort or a criminal offense committed by the official. The expenses of defending such litigation may include witness fees, transportation, toll and ferry expenses of witnesses, attorney's fees, court costs, and any other cost in connection with the defense of said litigation.

Ala. Code § 11-1-9(a) (2008). (emphasis added). A county commission may pay for legal fees under section 11-1-9(a) if the commission makes specific findings as set out by the Supreme Court of Alabama in the case of City of Montgomery v. Collins, 355 So.2d 1111 (Ala. 1978).

This Office has previously summarized the Collins test as follows:

(1) the lawsuit against the county officer must be based upon and grow out of the performance of a duty in connection with his or her office, (2) the suit does not involve a willful or wanton personal tort, (3) the officer was not guilty of a criminal offense, (4) it is in the proper interest of the county to expend county funds for the purpose of defending the official because of the risk of future litigation against the county itself arising out of the same or similar circumstances, and (5) the official in committing the acts in the discharge of the duties that are the subject of litigation must have acted honestly and in good faith.

Opinion to Honorable Billy Cannon, Chairman, Marshall County Commission, dated November 14, 2001, A.G. No. 2002-061. The county commission, in determining whether to pay legal fees, must make a factual determination using the test set forth in Collins. It should be noted that the question of a "proper corporate interest" was identified by the Supreme Court as the polestar in questions of this kind. Collins, 355 So.2d 1111, 1114. This Office has previously stated that the same analysis applies when determining whether to pay attorney's fees for a town clerk when issues arise out of his or her duties as an AEM. Opinion to Honorable Ray Webster, Mayor, Town of Gu-Win, dated July 20, 1989, A.G. No. 89-00359 (A town council may pay the attorney's fees for a town clerk indicted for criminal offenses pertaining to her duties as AEM in municipal elections).

If a county commission opts to provide legal representation and a conflict later arises among defendants named in the lawsuit, the circuit clerk may choose his or her own counsel and the county commission will be responsible for paying reasonable legal expenses incurred in the defense of the lawsuit. Opinion to Honorable Walker Hobbie, Jr., Judge of Probate, Montgomery County, dated June 3, 1981, A.G. No. 81-00408 (Probate Judge sued in his official capacity is entitled to counsel of his choosing when a conflict arises among defendants).

Based on the discussion above, whether legal representation is provided to you by the Attorney General or paid for by a county commission will depend on the claims made against you as AEM and the determination of the Attorney General that there is a state interest in the election. Such a determination is a factual question that must be made on a case by case basis and does not necessarily depend on the mere style of the litigation. Regardless, coverage is not guaranteed because the Attorney General may decline a request for legal representation if the issue is not related to a state interest, and the county commission may decline, in its discretion, to pay attorney's fees based upon its analysis under Collins.

CONCLUSION

Once the Attorney General determines that litigation against a circuit clerk sued in his or her official capacity as AEM concerns the interest of the state, the AEM shall be represented by the Attorney General or his or her designee.

A county commission may, in its discretion, reimburse the circuit clerk for legal expenses paid in defense of a lawsuit relating to his or her duties as AEM.

QUESTION THREE

If a circuit clerk is sued civilly in his or her official capacity as circuit clerk, or as AEM, and no government entity provides him or her with counsel, thereby requiring him or her to retain private counsel, is the entity required to reimburse the clerk and/or AEM for the cost of private counsel?

FACTS AND ANALYSIS

This Office is unaware of any legal authority whereby the Attorney General's Office would be responsible for reimbursement of costs associated with a circuit clerk acquiring private legal counsel. This Office has previously held that a county commission may, in its discretion, reimburse a county employee for legal fees paid in the successful defense of a criminal charge. Cannon. The Cannon opinion stated that a county commission should consider any potential reimbursement in light of the Collins case discussed above. Id.

CONCLUSION

A county commission may, in its discretion, reimburse the circuit clerk for legal expenses paid in defense of a lawsuit.

QUESTION FOUR

If a circuit clerk is sued civilly in his or her official capacity as circuit clerk or AEM and no government entity provides him or her with counsel, thereby requiring him or her to retain private counsel, may the circuit clerk utilize the funds in the circuit clerk account to pay fees to his or her private counsel?

FACTS, ANALYSIS. AND CONCLUSION

Section 12-17-225.4 of the Code of Alabama authorizes the assessment of a collection fee, a portion of which, after collection by the district attorney's Restitution Recovery Division, is distributed to the circuit clerk's fund. Ala. Code § 12-17-225.4 (2012). The distribution of this fee may be used only for governmental purposes and will be audited as are all other state funds. Opinion to Honorable W.F. Bailey, Circuit Clerk, Winston County, dated April 2, 1997, A.G. No. 97-00154.

Section 12-17-225.4 sets forth several purposes for which the monies may be expended but does not limit the expenditure of funds for those designated purposes. Section 12-17-225.4(2) reads as follows:

Collection fee.

After a matter has been transferred to a district attorney under Section 12-17-225.2, a court shall assess a collection fee of 30 percent of the funds due which shall be added to the amount of funds due. Any amount collected pursuant to this division shall be distributed as follows:

(2) Twenty-five percent of the collection fee shall be distributed to the circuit clerk's fund which shall be kept and maintained by the circuit clerk in a separate account to be used for the operation of the office of the clerk to include, but not limited to, equipment purchases, education, and other office related expenses including personnel. Funds retained by the circuit clerk shall not reduce the amount payable to the circuit clerk under any local act or general act or reduce or affect the amounts of funding allocated by the Administrative Office of Courts to the budget of the circuit clerk. The funds shall be audited as all other state funds audited...

Ala. Code § 12-17-225.4(2) (2012).

This Office has previously opined that appropriate expenditures from the circuit clerk's fund include expenses for employees to attend educational conferences, cleaning supplies for the office, rental of parking spaces for employees, food for various meetings, and to pay state and local bar dues for the circuit clerk. Opinion to Honorable Jane Smith, Circuit Clerk, Madison County Courthouse, dated June 22, 2010, A.G. No. 2010-076; Bailey, at 3; Opinion to Honorable John David Whetstone, Baldwin County District Attorney, dated February 14, 2006, A.G. No. 2006-055. Prohibited purchases include coffee, personal meals, personal items, cups, plates or similar personal items. Bailey at 3.

The opinions cited above distinguish between authorized office-related expenses and prohibited personal expenses. Thus, a circuit clerk sued in their personal capacity would be prohibited from using circuit clerk funds to hire an attorney or to reimburse personal legal expenses. Given the broad authority afforded to a circuit clerk in the expenditure of circuit clerk funds, however, a circuit clerk may use the funds to pay attorney fees and legal expenses arising from the defense of a lawsuit made against him or her in her official capacity. This conclusion coincides with a previous opinion from this Office that held a district attorney may use monies from the District Attorney's Fund to pay for premiums on insurance that would cover attorney's fees incurred in defending or dismissing lawsuits against a district attorney. Opinion to Honorable Joseph M. Carlton, Jr., Executive Director, Office of Prosecution Services, dated April 24, 1981, A.G. No. 81-00344. The Carlton opinion noted that even though the district attorney has absolute judicial immunity arising from the discharge of his duties, there is still a necessity to defend lawsuits and to cover the associated costs. Id.

CONCLUSION

A circuit clerk that is sued in his or her official capacity may use monies from the circuit clerk's fund to pay for attorney's fees and related legal expenses incurred in defending the lawsuit.

I hope this opinion answers your questions. If this Office can be of further assistance, please contact Wes Shaw of my staff.

Sincerely,

STEVE MARSHALL, Attorney General

BEN BAXLEY, Chief, Opinions Section