Bowling v. Brown, No. 409

CourtCourt of Special Appeals of Maryland
Writing for the CourtBISHOP
Citation57 Md.App. 248,469 A.2d 896
PartiesVictor B. BOWLING, Jr., et al. v. Terence R. BROWN. Sept. Term 1983.
Decision Date11 January 1984
Docket NumberNo. 409

Page 248

57 Md.App. 248
469 A.2d 896
Victor B. BOWLING, Jr., et al.
v.
Terence R. BROWN.
No. 409 Sept. Term 1983.
Court of Special Appeals of Maryland.
Jan. 11, 1984.

[469 A.2d 897]

Page 251

William B. Ellinger, La Plata, with whom were Mitchell & Ellinger, P.A., La Plata, on brief, for appellants.

Christopher C. Henderson, La Plata, with whom was Edward S. Digges, La Plata, on brief, for appellee.

Argued before LOWE, LISS and BISHOP, JJ.

[469 A.2d 898] BISHOP, Judge.

This appeal involves an action filed by a taxpayer of the Town of La Plata against two of the three members of the Town Council. The taxpayer's action was a successful attempt to have the two councilmen personally reimburse the town $4,598.07 which had been paid as reimbursement to the Town Manager and the Town Engineer for their criminal defense attorney's fees.

Victor B. Bowling, Jr., and Jack Davis, appellants, are the Mayor and a City Councilman, respectively, of the Town of La Plata, located in Charles County. The Council of the

Page 252

Town of La Plata is composed of the Mayor and two elected councilmen. Terrence R. Brown, appellee, and cross-appellant, is resident, property owner and taxpayer of the Town of La Plata. John D. Newman, Jr., is the Town Manager and Joseph Ward is the Town Engineer. When the events in this case occurred, Newman and Ward were stockholders of Facility Services, Inc.; Newman was also an officer of that corporation. Lindy Foster was a paid employee of the Town of La Plata.

Brown filed an action in the Circuit Court for Charles County against Mayor Bowling and Councilman Davis, seeking a declaratory judgment that Bowling and Davis had acted beyond the powers granted to them under the Town Charter when they approved by a two to one vote (Councilman Gyorda voting in the negative) Town Resolution 80-5, as a result of which public monies of the Town of La Plata were paid for Newman's and Ward's counsel fees. Brown further sought a money judgment in favor of the Town against Bowling and Davis, jointly and severally, in the amount of the expenditures along with reasonable attorney's fees to be awarded from the fund created by the judgment. After a court trial (Bowling, J.) judgment was entered in favor of Brown and the Town against both appellants in the amount of $4,598.07.

Appellants ask whether the trial court erred in making the following rulings:

I. That the payment of the funds under Resolution 80-5 was not for a public purpose;

II. That Article 23A, section 1B(a) does not apply;

III. That the individual Town Council members do not have qualified immunity for discretionary acts performed without malice; and

IV. That the "good faith" standard does not apply and the appellants did not exercise due care. Brown, in his cross-appeal, asks whether the Circuit Court erred in failing to award him attorney's fees where his suit has resulted in the creation of a fund for the benefit of all the taxpayers.

Page 253

The Facts

We adopt the facts as set out in the opinion of the trial court:

"On May 13, 1980, John D. Newman, Jr., and Joseph Ward were charged with corrupt misuse of their respective public offices as Town Manager and Town Engineer by converting for their personal use and benefit as officers and stockholders of Facility Services, Inc., a private corporation, the services of Lindy Foster, an employee of the Town of La Plata, for which services she was compensated by the Town of La Plata. The charges also included a count premised upon each criminal defendant's alleged disregard of his official duties by permitting Lindy Foster's services to be converted for the use of Facility Services, Inc., with a consequential perversion of each criminal defendant's trust as a municipal employee.

* * *

* * *

The charges were made by criminal information prepared and filed by the State's Attorney for Charles County. Prior to the information being prepared and filed, the matters which were the subject of the criminal informations were presented to the Grand Jury of Charles County, and a criminal presentment was returned by the Grand Jury, which formed the basis for the criminal information[469 A.2d 899] drafted and filed by the State's Attorney for Charles County. Each of the defendants retained counsel, and after a Motion to Dismiss was filed on behalf of Joseph Ward, the information was dismissed by a nolle prosequi by the State's Attorney for reason that a prior decision of the Court of Appeals ruled that a town engineer was not an official of the town and therefore, could not be charged under the Statute which formed the basis of the charges against him. Thereafter, the State's Attorney concluded that he was unable to pursue the charges against John D. Newman, Jr., beyond a reasonable doubt and dismissed the criminal information filed against him by a nolle prosequi.

Page 254

John D. Newman, Jr., and Joseph Ward discussed with the Defendant Bowling the possibility of reimbursement to them of counsel fees which they had paid. No demand for said fees, however, had been made by either employee. The Defendants testified at trial that the Grand Jury had probable cause for the issuance of the presentment against both employees. The Defendants discussed the possibility of the Town reimbursing the employees for legal expenses incurred, and on one occasion the Defendant, Jack Davis, stated to the Defendant, Victor B. Bowling, Jr., that he would only approve such a payment if counsel advised that it was permissible. No testimony was given as to precisely what information was given to the Town attorney, but Resolution 80-5 adopted on October 14, 1980 by the Town Council by a two-to-one vote, (the Defendants having voted in favor of the Resolution), recited that:

WHEREAS, criminal charges were brought against Mr. Newman and Mr. Ward by the State's Attorney, Charles County, Maryland, charging Mr. Newman and Mr. Ward with malfeasance and non-feasance, and

WHEREAS, the State's Attorney for Charles County, Maryland, has thoroughly investigated all allegations made against Town employees and dismissed all charges against Town Employees, and

WHEREAS, members of the Town Council have investigated the allegations made against Town Employees and have found no factual basis for these allegations, and

WHEREAS, these criminal charges brought by the State's Attorney for Charles County, Maryland against Mr. Ward and Mr. Newman were directly related and involved their duties as employees of the Town of La Plata, and

WHEREAS, there is legal precedent for reimbursing town officials for legal services and expenses as indicated below:

1. City of Moorhead v. Murphy, [94 Minn. 123] 102 N.W. 219, states 'In the absence of prohibitive charter

Page 255

provisions a municipality has the power to reimburse police officer for attorney fees and expenses incurred in the defense of an action for false imprisonment.

2. Marian Cobb, et al v. City of Cape May, [113 N.J.Super. 598] 274 Atl.2nd 622, held that a 'Public official is entitled to compensation incurred in the performance of his official duties. The right of a municipality to provide for defense of mayor or other officials if (sic) municipality in suit is not circumscribed by whether he acts precisely within his statutory authority.'

RESOLVED by the Town Council of La Plata that Mr. Ward and Mr. Newman be reimbursed for all legal fees incurred as a result of the charges brought against them by the State's Attorney for Charles County, Maryland. (Plaintiff's Exhibit No. 6.)

The Resolution was signed by each of the Defendants and it showed that the third Council member, John G. Gyorda, voted 'nay'. It is agreed by all parties that the use of Lindy Foster's services for Facility Services, Inc., as alleged in the criminal informations, was not within the scope of the authority and/or employment of either John D. Newman, Jr., or [469 A.2d 900] Joseph Ward. As a result of this Resolution, $3,076.57 from public funds was paid as reimbursement for the criminal defense of John D. Newman, Jr., and $1,521.50 was paid from public funds for reimbursement for criminal defense of Joseph Ward."

* * *

* * *

Under Section 19(24) of the Town Charter the Town Council is authorized:

"[t]o levy, assess, and collect valorem property taxes; to expend municipal funds for any public purpose; to have general management and control of the finances of the Town."

There is provision under the "Saving Clause," subsection 58 of Section 19 that "the enumeration of powers in this section is not to be construed as limiting the powers of the

Page 256

Town to the several subjects mentioned." Appellant argues that the trial court erred in finding that the expenditure of the funds pursuant to Resolution 80-5 was not for a public purpose because the court made this determination solely on "the fact that the criminal information ... was not for the benefit of the Town of La Plata." They asseverate that the court failed to consider "the public benefits derived from assisting the Town in recruiting and retaining qualified officials and to maintain morale. Appellants claim that since the basis for the criminal charges were the allegations that had been previously made by Councilman Gyorda and since Councilman Gyorda's investigation was having an adverse effect on Town employees and disrupting Council activities, it was necessary to pass Resolution 80-4, a resolution which closed the investigation of the allegations against the Town employees. As we follow it, appellants' argument proceeds that since the investigation and allegations against them were founded in what appeared to be a political controversy that caused negative effects on the Town employees and the function of the Town Council, and since Resolutions 80-4 and 80-5 were passed to alleviate those conditions, they were passed for a public purpose. In Snowden v. Anne Arundel County, 295 Md. 429, 434, 456 A.2d 380 (1983) the Court stated:

"Giving...

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8 practice notes
  • Finch v. Hughes Aircraft Co., No. 393
    • United States
    • Court of Special Appeals of Maryland
    • January 11, 1984
    ...Circuit Court case, the Court will enter judgment for Hughes on its Counterclaim in the Superior Court case in the amount of $23,077.27. [469 A.2d 896] Punitive damages may be awarded in an action for deceit "where the wrong involved some violation of duty springing from a relationship of t......
  • People v. Ohrenstein
    • United States
    • United States State Supreme Court (New York)
    • June 15, 1988
    ...to share" [ Smith v. Smythe, 197 N.Y. 457, 464, 90 N.E. 1121 (1910); Weismer v. Village of Douglas, supra; see, also Bowling v. Brown, 57 Md.App. 248, 469 A.2d 896, 902 (1984) ]. In the context of public employment, this means that salaries may not be paid from tax revenues unless the perso......
  • Wright v. City of Danville, No. 78181
    • United States
    • Supreme Court of Illinois
    • December 19, 1996
    ...charges is never a proper public purpose. See Hall v. Thompson, 283 Ark. 26, 28-29, 669 S.W.2d 905, 906-07 (1984); Bowling v. Brown, 57 Md.App. 248, 260, 469 A.2d 896, 902 (1984); Corning v. Village of Laurel Hollow, 48 N.Y.2d 348, 353-54, 398 N.E.2d 537, 540-41, 422 N.Y.S.2d 932, 935-36 (1......
  • Garcia v. FOULGER PRATT, No. 1483
    • United States
    • Court of Special Appeals of Maryland
    • December 4, 2003
    ...were benefitted by a taxpayer's action resulting in reimbursement to the municipality of unauthorized disbursements, Bowling v. Brown, 57 Md.App. 248, 469 A.2d 896 (1984); and where a successful taxpayer's action benefitted all taxpayers of a "special tax district." Smith v. Edwards, 46 Md.......
  • Request a trial to view additional results
8 cases
  • Finch v. Hughes Aircraft Co., No. 393
    • United States
    • Court of Special Appeals of Maryland
    • January 11, 1984
    ...Circuit Court case, the Court will enter judgment for Hughes on its Counterclaim in the Superior Court case in the amount of $23,077.27. [469 A.2d 896] Punitive damages may be awarded in an action for deceit "where the wrong involved some violation of duty springing from a relationship of t......
  • People v. Ohrenstein
    • United States
    • United States State Supreme Court (New York)
    • June 15, 1988
    ...to share" [ Smith v. Smythe, 197 N.Y. 457, 464, 90 N.E. 1121 (1910); Weismer v. Village of Douglas, supra; see, also Bowling v. Brown, 57 Md.App. 248, 469 A.2d 896, 902 (1984) ]. In the context of public employment, this means that salaries may not be paid from tax revenues unless the perso......
  • Wright v. City of Danville, No. 78181
    • United States
    • Supreme Court of Illinois
    • December 19, 1996
    ...charges is never a proper public purpose. See Hall v. Thompson, 283 Ark. 26, 28-29, 669 S.W.2d 905, 906-07 (1984); Bowling v. Brown, 57 Md.App. 248, 260, 469 A.2d 896, 902 (1984); Corning v. Village of Laurel Hollow, 48 N.Y.2d 348, 353-54, 398 N.E.2d 537, 540-41, 422 N.Y.S.2d 932, 935-36 (1......
  • Garcia v. FOULGER PRATT, No. 1483
    • United States
    • Court of Special Appeals of Maryland
    • December 4, 2003
    ...were benefitted by a taxpayer's action resulting in reimbursement to the municipality of unauthorized disbursements, Bowling v. Brown, 57 Md.App. 248, 469 A.2d 896 (1984); and where a successful taxpayer's action benefitted all taxpayers of a "special tax district." Smith v. Edwards, 46 Md.......
  • Request a trial to view additional results

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