Michigan Advisory Opinions March 17, 1992: AGO 6715 (March 17, 1992)

AGO 6715.

You have asked whether a village may use its funds for the purpose of paying legal fees to legal counsel for representing four village council members opposing a recall petition directed at the four council members based on their performance of their duties as elected officials.

OAG, 1991-1992, No 6704, p --- (October 22, 1991), concluded that a municipality lacks authority to expend public funds for the purpose of paying legal expenses incurred by city commissioners in opposing petitions for their recall. The rationale of that opinion is that there is no authority to pay the legal fees because the city commissioners have no legal duties to perform concerning either the recall petitions or the recall election.

Here, no village council member has any legal duties regarding the form of a recall petition or the sufficiency of signatures on a recall petition. To the contrary, it is the duty of the county clerk, under MCL 168.960(1); MSA 6.1960(1), and MCL 168.961; MSA 6.1961, to determine whether a recall petition involving village trustees is in proper form and whether it contains sufficient valid signatures. The role of the village clerk is to compare the names on the recall petitions with the village registration records pursuant to MCL 168.961; MSA 6.1961. Village council members, however, have no legal duties regarding the recall petition or the recall election.

One issue not raised or considered in OAG, 1991-1992, No 6704, supra, was the effect of an indemnification resolution. In December, 1988, the village here in question adopted a resolution providing for indemnification of all elected officials "against any and all civil claims ... to which he or she has or shall become subject by reason of serving or having served as an elected official for the Village or by reason of any action alleged to have been taken, omitted, or neglected by him or her as such elected official which occurred in the course of his or her official Village duties and within the scope of his or her authority." The resolution further states that "[t]he Village shall provide legal representation for elected officials necessitated by such civil claims."

This resolution is consistent with the discretionary power of municipalities to indemnify a public official against civil liability for actions taken in the discharge of his/her official duties and to employ legal counsel to defend such official. The general rule was stated in Exeter Twp. Clerk v. Exeter Twp. Bd., 108 Mich.App. 262; 310 N.W.2d 357 (1981):

While there are no Michigan cases directly on point, there are some cases which are helpful in considering the issue before us. The Michigan Supreme Court in the case of Messmore v. Kracht, 172 Mich. 120, 122; 137 N.W. 549 (1912), stated:

" 'It is within the discretionary power of a municipality to indemnify one of its officers against liability incurred by reason of any act done by him while in the bona fide discharge of his official duties, and the municipality has the right to employ counsel to defend the officer or to appropriate funds for the necessary expenses incurred by him in such defense, or pay a judgment rendered against him.' "

[Citations omitted.]

Accordingly, a municipality, such as a township, in general possesses the discretion to determine whether (1) counsel for the township shall represent a township official sued in his or her capacity, (2) to approve retention of private counsel paid for by the township, (3) to indemnify the official for expenses incurred in defending the action, including attorney fees, or (4) the township board may decline to provide legal representation or indemnification for such official. The exercise of discretion by a municipality is generally reviewable by the courts for abuse of discretion. See Law Dep't Employees Union v. City of Flint, 64 Mich.App. 359; 235 N.W.2d 783 (1975). Cf. Wendel v. Swanberg, 384 Mich. 468, 475-476; 185 N.W.2d 348 (1971).

108 Mich.App. at 268-269.

In Exeter, supra, the court ordered the township board to pay the legal fees incurred by the township clerk in the course of performing her statutory obligations under Michigan's election laws. Also, in Exeter, supra, the township clerk was an involuntary defendant in a civil case brought against her as a result of the performance of her statutory duties.

Here, in contrast, the village council members have no statutory duties with regard to either the recall petitions or the recall election. Further, no litigation has been filed against the four council members. Rather, the four council members chose to file a law suit challenging the sufficiency of the recall petitions. Thus, the Exeter case does not apply here.

The instant indemnification resolution, consistent with the indemnification authority of municipalities to pay civil claims and legal fees set forth in Exeter, supra, covers civil claims against elected village officials arising out of their performance of their legal duties. The resolution does not, and indeed under present law could not, authorize indemnification for legal fees incurred by four members of the village council who chose to initiate litigation not connected with any of their statutory duties.

It is my opinion, therefore, that a village may not use its funds for the purpose of paying legal fees to legal counsel for representing four village council members opposing a recall petition directed at the four council members based on their performance of their duties as elected officials.

Frank J. Kelley

Attorney General