Alabama Advisory Opinions December 11, 2007: AGO 2008-020 (December 11, 2007)
Collection: Alabama Attorney General Opinions
Docket: AGO 2008-020
Date: Dec. 11, 2007
Advisory Opinion Text
AGO 2008-020.
County Executive Officer
Cleburne County Commission
120 Vickery Street, Room 207
Heflin, Alabama 36264
Dear Mr. Swafford:
This opinion of the Attorney General is issued in response to your request on behalf of the Cleburne County Commission.
QUESTION ONEIf a county commissioner is named as a contestee in an election contest after election results have been certified, a mandatory recount has been performed, and he or she has been sworn in, may the county corn-mission legally defend and pay for the legal defense of the results of the election?
FACTS AND ANALYSISIf no effort was made by the county commission at the time of the contest to legally defend and pay for the legal defense in support of the results of the election, may the county commission legally reimburse him or her?
You have informed this Office that the election for the Cleburne County Commission occurred on November 7, 2006, and was contested on December 6, 2006. The final judgment was issued on March 16, 2007, upholding the election.
Section 11-1-9 of the Code of Alabama governs the payment of costs of defending lawsuits against county officials. It provides as follows:
ALA. CODE § 11-1-9 (1989) (emphasis added).(a) Any law to the contrary notwithstanding, the county commission of any county of the state of Ala bama 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.
This provision states that a county commission can pay the costs of defending a lawsuit brought against a county official if the suit stems from the performance by the official of a duty in connection with his or her office and does not involve a willful or wanton personal tort or a criminal offense committed by the official. Opinion to Honorable Barrown D. Lankster, Attorney at Law, dated February 8, 1990, A.G. No. 90-00131.
Furthermore, the Supreme Court of Alabama has determined that public entities may pay for the legal defense of officials or employees of the entity upon certain findings that satisfy the elements set forth by the Court in City of Montgomery v. Collins, 355 So. 2d 1111 (Ala. 1978) citing City of Birmingham v. Wilkinson, 239 Ala. 199, 194 So. 548 (1940). See Opinion to Honorable Billy Cannon, Chairman, Marshall County Commission, dated November 14, 2001, A.G. No. 2002-061; Opinion to Honorable Bobby Neighbors, Superintendent, Jefferson County Board of Education, dated February 20, 2001, A.G. No. 2001098; Opinion to Honorable J. Fletcher Jones, Attorney, Covington County Commission, dated January 6, 1984, A.G. No. 84-00113.
A county commission can, therefore, pay the legal fees of a county official in a civil or criminal case if the commission makes specific findings to meet the five-part test established in City of Montgomery v. Collins. The test can be summarized 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.
See Jones at 3, citing City of Montgomery v. Collins, 355 So. 2d 1111 (Ala. 1978). The Court, in Collins, stated that it must be in the "proper corporate interest" of the municipality to expend its funds for defending an official and that this "proper corporate interest" depends, in part, upon the existence of a risk of future litigation against the city itself arising out of the same or similar circumstances. Lankster at 2.
This Office has previously determined that "[s]ince a candidate who is an incumbent is not acting in his official capacity when he runs for re-election, the city does not have a proper interest in an election contest between the incumbent and his opponent." Opinion to Honorable Gwin Wells, Mayor, City of Sumiton, dated November 17, 1988, A.G. No. 89-00048. As a result, the legal fees incurred by a Cleburne County Commissioner in the defense of an election contest did not grow out of the performance of a duty in connection with the office of county commissioner. The Collins test, therefore, cannot be satisfied, and no county funds can be used for this purpose.
CONCLUSIONCounty funds cannot be used to pay the legal fees incurred by a county commissioner in the defense of an election contest because a proper corporate interest does not exist.
QUESTION TWOFACTS AND ANALYSISIs the county commission legally able to demand reimbursement of legal defense expenses from an unsuccessful contestant in an election contest occurring after election results have been certified, a mandatory recount having been performed and the contestee having been sworn into office, where the county commission has incurred expenses to defend the results of an election?
Section 11-1-9 authorizes county commissions to "defray the costs of defending any lawsuit brought against any county official. . ." ALA. CODE § 111-9 (1989). This section does not address whether a county commission can demand reimbursement of these expenses from the plaintiff of such a suit.
A county, as a creature of statute and a political subdivision of the state, can exercise only the authority conferred on it by law. Opinion to Honorable Frank Burt, Jr., Chairman, Baldwin County Commission, dated December 6, 1999, A.G. No. 2000-039, citing Jefferson County v. Johnson, 333 So. 2d 143, 145 (Ala. 1976); Lorence v. Hospital Bd. of Morgan County, 294 Ala. 614, 617, 320 So. 2d 631, 633 (1975). There is no statutory authority for a county to seek reimbursement of legal expenses paid pursuant to section 11-1-9 of the Code. It is therefore the opinion of this Office that the commission cannot demand reimbursement from an unsuccessful contestant for the expenses incurred because of an election contest.
CONCLUSIONI hope this opinion answers your questions. If this Office can be of further assistance, please contact Noel S. Barnes of my staff.
Sincerely,
TROY KING
Attorney General
By: BRENDA F. SMITH
Chief, Opinions Division
TK/NB
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