Lomelo v. City of Sunrise, 81-2249

• Decision Date: 08 December 1982
• Docket Number: No. 81-2249,81-2249
• Citation: 423 So.2d 974
• Parties: John LOMELO, Jr., Mayor of the City of Sunrise, Appellant, v. CITY OF SUNRISE, Florida, a municipal corporation, and Dan Pearl, William "Bill" Colon, Lawrence "Larry" Hoffman, Steven W. Effman, and John Montgomery, as members of and constituting the City Council of the City of Sunrise, Florida, Appellees.
• Court: Florida District Court of Appeals

Page 974

423 So.2d 974

John LOMELO, Jr., Mayor of the City of Sunrise, Appellant, v. CITY OF SUNRISE, Florida, a municipal corporation, and Dan Pearl, William "Bill" Colon, Lawrence "Larry" Hoffman, Steven W. Effman, and John Montgomery, as members of and constituting the City Council of the City of Sunrise, Florida, Appellees.

No. 81-2249.

District Court of Appeal of Florida Fourth District.

Dec. 8, 1982.

Rehearing Denied Jan. 12, 1983.

David R. Mackenzie, Lauderhill, for appellant.

Philip S. Shailer of Shailer, Purdy & Jolly, Fort Lauderdale, for appellees Dan Pearl, William "Bill" Colon, Lawrence "Larry" Hoffman, Steven W. Effman and John Montgomery, as members of and constituting the City Council of the City of Sunrise, Fla.

HERSEY, Judge.

The mayor of the City of Sunrise, Florida, appeals from a declaratory judgment which determined that the city had no duty to pay attorneys' fees incurred by the mayor in his successful defense against a felony indictment.

The indictment charged the mayor with corruption by threat against a public servant. Appellant's brief succinctly states the circumstances which led to the indictment.

Appellant testified that he happened to be at the Sunrise Musical Theatre when he observed police officers of the City of Sunrise arresting a young man the Mayor recognized and knew to be a resident of the City of Sunrise.

Appellant then testified that he spoke to the lieutenant in charge of the detail and asked if the boy could be released in his father's custody without having to post a FIVE THOUSAND ($5,000.00) DOLLAR bond.

The indictment alleges that at this point threats were made by Appellant to secure the release of the young man.

The Appellant went on to testify that he then went to the police station and called the City Attorney of the City of Sunrise to ask if he (Appellant) had the authority to release him on his own recognizance through his father.

Based upon his conversation with the City Attorney, the Appellant, as Mayor of the City, released the young man on his own recognizance.

Subsequent to these events the Appellant was indicted.

The Appellant testified that pursuant to the Charter of the City of Sunrise that the Chief of Police reports directly to him.

Appellant, after indictment, sought to have the City Attorney of the City of Sunrise represent him but this was not possible as he had been suspended by the Governor after the indictment was returned. As a result, Appellant had to secure private counsel.... [T]he City Council of the City of Sunrise refused to pay the bill for attorneys services rendered.

Concerning this incident, the indictment set out that appellant did, among other things:

1. Inquire of Lt. Ernest Howey as to whether any "courtesy" could be extended to Michael Bradshaw;

2. Request that Michael Bradshaw be released from custody and the charges be voided or words to the same tenor and effect;

3. Ask if Lt. Ernest Howey would take care of this or would it be necessary to go to someone higher;

4. After being advised by Lt. Ernest Howey that he (Howey) was not the arresting officer but that he would speak with Officer Roberts and support Roberts in any decision he made, did remind Lt. Howey that he, (John Lomelo, Jr.) has a long memory; and

5. That he, (John Lomelo, Jr.) could take care of his (Lt. Howey's) family.

Appellant was acquitted on these charges.

The parties agree that no state statute, city ordinance or provision of the city charter authorizes or requires reimbursement for attorneys' fees under these circumstances. However, appellees, in their brief, concede that [A] public officer is entitled to a defense at the expense of the public in defending suits or misconduct charges while performing his public duties and while serving a public purpose. Appellees take no issue with said principle; ....

We think this accurately reflects the present status of the law. It is settled that a municipal corporation has the right and power to retain and pay private counsel to protect the interests of the municipality and that invasion of those interests may take the form of an attack on one or more public officers. City of North Miami Beach v. Estes, 214 So.2d 644 (Fla. 3d DCA 1968), cert. discharged, 227 So.2d 33 (Fla.1969). In Markham v. State, Department of Revenue, 298 So.2d 210, 211 (Fla. 1st DCA 1974), the court explicitly states:

It is a fundamental concept of the law in Florida and elsewhere that public funds may not be expended for other than public purposes. Public officers are, of course, entitled to a defense at the expense of the public in a law suit arising from the performance of the officer's official duties and while serving a public purpose. Duplig v. City of South Daytona, Fla.App. (1st) 1967, 195 So.2d 581.

It is neither remarkable nor legally significant that this rule evolved from cases in which the issue is posed in terms of the propriety, after the fact, of municipalities paying legal fees incurred by public officials. The rule and its rationale apply as well pre-payment as post-payment. Thus Shuler v. School Bd. of Liberty County, 366 So.2d 1184 (Fla. 1st DCA 1978), involves as does our case the refusal of the body politic (a school board) to employ and pay for an attorney to represent a public official (the superintendent). Shuler exemplifies an application of the rule discussed in these earlier cases and imposes a "duty to pay."

A recent pronouncement of the Third District Court of Appeal on this issue in City of Hialeah v. Bennett, 376 So.2d 483 (Fla. 3d DCA 1979), is worth repeating here:

Affirmed on the authority of the rule stated as follows in Cahn v. Town of Huntington, 29 N.Y.2d 451, 328 N.Y.S.2d 672, 676, 278 N.E.2d 908, 910 (1972):

[A] municipal board or officer possesses implied authority to employ counsel in the good faith prosecution or defense of an action undertaken in the public interest, and in conjunction...