Chavez v. City of Tampa, 88-01709

• Decision Date: 16 March 1990
• Docket Number: No. 88-01709,88-01709
• Citation: 560 So.2d 1214
• Parties: 15 Fla. L. Weekly D742 Helen CHAVEZ, Appellant/Cross-Appellee, v. CITY OF TAMPA, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

Page 1214

560 So.2d 1214

15 Fla. L. Weekly D742

Helen CHAVEZ, Appellant/Cross-Appellee, v. CITY OF TAMPA, Appellee/Cross-Appellant.

No. 88-01709.

District Court of Appeal of Florida,

Second District.

March 16, 1990.

Rehearing Denied May 11, 1990.

Guy M. Burns and Jacqueline W. Hubbard of Johnson, Blakely, Pope, Bokor, Ruppel & Burns, P.A., Clearwater, for appellant/cross-appellee.

Charlene V. Edwards, Asst. City Atty., Tampa, for appellee/cross-appellant.

PER CURIAM.

In this case we reverse the trial court's award of attorney's fees and costs incurred by a city official in successfully defending charges of unethical conduct before the Florida Commission on Ethics (the commission) because there is no authority for the award.

The appellant, Helen Chavez, is a restauratrice in Tampa and at all relevant times was a member of the Tampa City Council. In her capacity as businesswoman, she petitioned the city for a 4-COP alcoholic beverage zoning classification permitting both on- and off-premises liquor sales at premises she had recently leased in downtown Tampa. On October 17, 1985, the city council passed a resolution which set her petition for a public hearing on November 21, 1985. Her petition was then taken up for action at the scheduled November 21, 1985, public hearing. In alcoholic beverage zoning matters, the city council first votes whether to refer the petition to the city's legal department for drafting into ordinance language before returning it to the council for further action. Because her own petition was before the council for this official action, the appellant inquired of the city attorney whether her participation in the voting would constitute a conflict of interest. The city attorney responded that he believed it would be a conflict of interest. Based on his response, the appellant abstained from the vote on the motion to send her own petition to the legal department for the necessary step of drafting into ordinance form. The vote on the motion was tied, 3-3. The effect of this impasse was to deny the motion. Under the council's procedure at this time, the denial of the motion meant that the petition was dead and the appellant could not begin the process anew for at least 12 months. ¹ Upon the announcement of the defeat of the motion, the appellant declared that she would change her mind, vote on the motion and take the consequences, conflict or no conflict. Another vote was taken. This time the appellant voted for the motion and her vote broke the tie. Thus, because the motion passed 4-3, her previously moribund petition was revived, moved forward to the next step in the process at the legal department, and subsequently returned to the council for further action. ²

On December 3, 1985, a political consultant for one of the candidates running for election as mayor of the city of Tampa filed a complaint with the commission alleging that the appellant's tie-breaking vote had violated section 112.3143(3), Florida Statutes (1985). ³ During this period, the appellant was also a candidate for mayor. The commission considered the complaint and found sufficient probable cause to proceed with an investigation of the appellant's alleged violation. The appellant employed counsel and defended the charges before the commission, thus incurring the initial attorney's fees at issue in this appeal. A hearing was held before a hearing officer. At the end of the proceedings, the hearing officer recommended that the complaint against the appellant be dismissed because he concluded that her vote to break the impasse at the November 21 hearing was merely preliminary and procedural and not a vote on the substance of the ordinance itself. Based on that legal conclusion, the hearing officer recommended a finding that the appellant did not violate section 112.3143(3). The commission adopted the hearing officer's recommended report and dismissed the complaint against the appellant. ⁴

Subsequently the appellant requested that the city reimburse her for her legal expenses incurred in defending herself before the commission. The city council declined to do so. Consequently, the appellant filed suit in circuit court seeking reimbursement from the city. The trial court found for the appellant and ordered the city to reimburse her for her attorney's fees and costs but in an amount less than she requested. The court denied her any fees incurred in bringing the suit. The appellant timely filed her notice of appeal and the city cross-appealed.

In her appeal, the appellant contends that the trial court erred in not awarding the full amount of fees she requested for her defense before the commission and further erred in denying her any fees for the circuit court suit. In its cross-appeal, the city contends that the trial court was without authority to award her any fees at all. Because we agree with the city that there was no legal basis for the award of fees, we reverse on the cross-appeal. The appeal, therefore, is moot.

ENTITLEMENT UNDER A STATUTORY THEORY

We begin our analysis of this case by examining section 111.07, Florida Statutes (1985), the statute under which the appellant claims she is entitled to reimbursement of her fees. ⁵ This section contains precise language that fee awards are authorized "to defend any civil action arising from a complaint for damages or injury suffered." The statute clearly contemplates a judicial proceeding in a court of law, before a judicial officer, by the plain meaning of "civil action ... for damages or injury." It is true that a sworn complaint initiates an administrative proceeding before the commission, section 112.322(1), Florida Statutes (1985), but that is not at all the same as a complaint for damages which initiates a civil proceeding in a court of law as governed by Florida Rules of Civil Procedure. The commission was established in article II, section 8 of the state constitution and in section 112.320 of the statutes to act as a watchdog to guard against abuses of the trust in which officials and employees of the government hold their office and employment. The function of the commission is to receive and investigate complaints of unethical conduct; after investigating, it reports its findings and recommendations. Section 112.317, dealing with procedure if the commission finds against a respondent, itself contemplates that the commission's own proceedings do not constitute civil actions: Subsection 2 of this section provides that upon a finding of a violation of the Code of Ethics and a recommendation of a civil penalty or restitution penalty, the Attorney General must bring a civil action, i.e., in court, to recover the recommended penalty. Our reasoning is buttressed by our supreme court's finding in Commission on Ethics v. Sullivan, 489 So.2d 10 (Fla.1986), that the commission is an investigative body and located in the legislative branch of government, not in either the executive or the judicial branches. In sum, since the commission is a part of the legislative branch, proceedings before that investigative body can not be "civil actions." Because that is so, the appellant could not be a prevailing defendant in a civil action for damages so as to activate the statute, even though she was a prevailing respondent before the commission. See City of Fort Walton Beach v. Grant, 544 So.2d 230, 236 (Fla. 1st DCA 1989) (statute not activated for fees incurred: (1) for representation of council members before administrative body in police chief's grievance suit against city; (2) in council members' suit for injunctive relief in recall petition campaign initiated by citizens; nor (3) for monitoring proceedings of police chief's suit for declaratory relief in circuit court against city attorney so that chief's dismissal could be reviewed by a termination committee under the grievance procedure). Accordingly, it was error for the trial court to base an award of fees to appellant on the statute.

We turn now to the appellant's alternative argument. The appellant claims that she is entitled to reimbursement of her fees and costs under a common law theory even if she is not under the statute. We disagree with this contention as well. The First District Court of Appeal has implicitly held that section 111.07 supplants the common law, see id. at 239 (Zehmer, J., concurring and dissenting), and this appears to us to be correct. Several provisions of chapter 111 deal with the payments of judgments, settlements, attorney's fees and costs which can be expended for public officials and employees. See sections 111.065 through 111.072. These sections, when read together with the Code of Ethics in chapter 112, detailing appropriate public official behavior, address the legal principles previously announced in this area of the common law. ⁶

ENTITLEMENT UNDER A COMMON LAW THEORY

Even if the statute did not supplant the common law and she was entitled to these costs and fees under case law, we would still reverse because the appellant has failed to carry her burden of proof under this theory as well. The appellant cites Lomelo v. City of Sunrise, 423 So.2d 974, 976 (Fla. 4th DCA 1982), which holds that a city has no discretion to deny reimbursement of fees to a public official in defending either civil or criminal proceedings "where the conduct complained of arises out of or in connection with the performance of his official duties [and that the] obligation arises independent of statute, ordinance or charter." Under the common law, a city has the duty to protect its interests even when those interests are invaded in the form of an attack on a public officer. Id. at 976. The conditions that must be satisfied for a public official to be compensated for legal defense expenditures are that the lawsuit arise from (1) the performance of the officer's official duties and (2) while serving a public purpose. Id. ⁷ The appellant is not entitled to fees because she has not fulfilled both...