Alabama Advisory Opinions December 11, 2007: AGO 2008-20 (December 11, 2007)

Alabama Attorney General Opinions

2008.

AGO 2008-20.

Dear Mr. Swafford:

This opinion of the Attorney General is issued in response to your request on behalf of the Cleburne County Commission.

QUESTION ONE

If 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 com-mission legally defend and pay for the legal defense of the results of the election?

If 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 elec-tion, may the county commission legally reimburse him or her?

FACTS AND ANALYSIS

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 elec-tion.

Section 11-1-9 of the Code of Alabama governs the payment of costs of defending lawsuits against county officials. It provides as follows:

(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 will-ful or wanton personal tort or a criminal offense com-mitted 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 (1989) (emphasis added).

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 com-mitted 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. 2001-098; Opinion to Honorable J. Fletcher Jones, Attorney, Covington County Com-mission, dated January 6, 1984, A.G. No. 84-00113.

A county commission can, therefore, pay the legal fees of a county offi-cial 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 offi-cial 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 hon-estly 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 con-test 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.

CONCLUSION

County 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 TWO

Is 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 hav-ing been sworn into office, where the county com-mission has incurred expenses to defend the results of an election?

FACTS AND ANALYSIS

Section 11-1-9 authorizes county commissions to "defray the costs of defending any lawsuit brought against any county official. . ." Ala. Code § 11-1-9 (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 re-imbursement from an unsuccessful contestant for the expenses incurred because of an election contest.

CONCLUSION

Alabama law does not authorize a county commission to seek reimburse-ment of legal expenses from an unsuccessful contestant in an election contest.

I hope this opinion answers your questions. If this Office can be of fur-ther 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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