When are taxpayers responsible for lawsuit costs? [The Anniston Star, Ala.]

Dec. 18--Whether to pay legal fees in a lawsuit against one current and one former Anniston city councilman is a question the City Council could continue to grapple with in future meetings.

There doesn't seem to be a clear answer.

Councilman Ben Little and former Councilman John Spain are being sued by the Anniston Fraternal Order of Police on behalf of its members, who are current and former members of the Anniston Police Department. Both have asked the city to pick up their legal expenses for the case.

The lawsuit claims the councilmen are guilty of "constant and continual conduct of harassment, intimidation, defamation, negligence, recklessness, wantonness and malice" toward the officers and employees of the Police Department. In the complaint, the lawsuit names, among other things, actions in the City Council's inquiry looking into alleged corruption in City Hall and the Anniston Police Department.

The inquiry was approved by all five members of the council, but Mayor Gene Robinson refused to participate.

The complaint additionally lists phone calls Little made to -- and his appearance on -- a local talk-show as instances of harassment. The complaint also lists an incident that led to Spain being charged with violating the law that regulates Anniston's council-manager form of government. The charge was later dropped as part of a deal that included Spain resigning his seat on the council. Spain was also charged with misdemeanor assault after an alleged altercation with Robinson in the hallway outside the council chambers at the Sept. 13 meeting. That charge was also dropped in the deal.

Robinson, who has spent his own money battling lawsuits while in office, including one filed against him personally by Little, said he is staunchly opposed to the city paying the legal fees.

But Little noted the complaint filed against the councilmen included official actions taken during the City Council's inquiry.

According to Hugh Evans, general counsel for the Alabama Ethics Commission, the city could pick up the legal expenses if a councilman is being sued for something he did as a councilman.

"If a public official is being sued in his official capacity for something he or she did as a public official, then it's not improper for that public entity to pay their attorney's fees," Evans said. "If the councilman has been arrested for something, then obviously the public entity can't pay the attorney fees because that's a private matter."

Legal opinions

The Alabama Attorney General's office has issued several opinions over the past decade saying that municipal and county governments can pay the legal expenses of their officials if the lawsuit is based upon something done in the performance of a duty.

According to the opinions, several conditions have to be met: The action taken cannot involve intentionally hurting someone; it has to have been done honestly and in good faith; and cannot result in a criminal conviction. The city also needs to consider whether paying the legal fees is in the best interest of the governing body, because of risk of future litigation rising out of the lawsuit, the attorney general's opinions specify.

Little insists the city has a duty to defend him because he is being sued for actions he took in performing his duties.

"I'm just doing my duty," he said. "Elected officials say things all the time that other people may not like, that workers may not like."

The inquiry was an official action of the City Council, approved by all five members, he said. The council members shouldn't be sued for doing their jobs.

Birmingham attorney William Eugene Rutledge has represented Little in several cases and represented Spain in the assault case.

Rutledge said the city has an obligation to provide defense because of the legislative immunity that the councilmen enjoy when performing their duties.

"I don't think that they have any choice but to defend their legislators against charges of bad conduct in the votes they cast," Rutledge said. "You can imagine if the Alabama Legislature was liable for the unforeseen consequences of some of their votes. They'd be in trouble."

Rutledge argues that a legislator is not liable for anything he or she might say in that capacity. In the Alabama Open Meetings Act, legislators are granted immunity during open meetings, including the inquiry hearings.

"Members of a governmental body and any of its employees participating in a meeting conducted in conformance with this chapter shall have an absolute privilege and immunity from suit for any statement made during the meeting which relates to an action pending before the governmental body," the Act reads.

According to code, the city is not just allowed, it is required to provide defense, said Tracy Roberts, general counsel for the Alabama League of Municipalities.

Alabama municipal code reads, "such government agency shall be authorized and required to provide defense counsel for such employees in such suit and to indemnify him from any judgment rendered against him in such suit."

However, the complaints alleged in the lawsuit are a mixed bag of charges. Some are criminal for which Spain has already been arrested. Some don't fall under the immunity of the Alabama Open Meetings Act, because they happened outside a meeting. Roberts said the City Council would be responsible for figuring out how to reimburse the councilmen.

Insurance option

The city has insurance that often covers legal fees and judgments in lawsuits involving the municipality, said Don Hoyt, Anniston's city manager.

"Every lawsuit that comes through, we notify the Alabama Municipal Insurance Corporation, and, in many cases, lawsuits and claims are handled by them," Hoyt said.

The insurance company must decide if the lawsuit is something it will cover. If not, the burden falls on the city to cover its legal fees. In a case where a councilman or two are being sued, if the insurance won't cover the defense, it's up to the City Council to decide whether it's legally able to cover those fees, and if it is in the city's best interest to cover those fees.

Hoyt said he doesn't know if it's appropriate for the city to pick up Little's legal fees. He added that the insurance company has already informed the city it will not cover the expenses.

But Rutledge said the council has the option of filing a declaratory judgment against the city's insurance company, asking the court to force the insurance company to pay the legal fees.

The council argued the issue at its meeting Tuesday, but declined to vote on it, leaving it up to Little and Spain to provide for their own defense beginning with a hearing on Monday.

Star staff writer Laura Camper: 256-235-3545.

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