City of North Miami Beach v. Estes

• Decision Date: 15 October 1968
• Docket Number: No. 68--104,68--104
• Citation: 214 So.2d 644
• Parties: CITY OF NORTH MIAMI BEACH, Appellant, v. John W. ESTES, Jr., Appellee.
• Court: Florida District Court of Appeals

Page 644

214 So.2d 644

CITY OF NORTH MIAMI BEACH, Appellant, v. John W. ESTES, Jr., Appellee.

No. 68--104.

District Court of Appeal of Florida, Third District.

Oct. 15, 1968.

A. J. Kaplan, City Atty., and Sam I. Silver, Asst. City Atty., for appellant.

John W. Estes, Jr., North Miami Beach, for appellee.

Before BARKDULL, HENDRY and SWANN, JJ.

PER CURIAM.

The defendants below have appealed from an order of the Circuit Court of Dade County, in which it was determined that the use of public funds for the payment of special counsel to defend certain city councilmen and the City Attorney in a lawsuit was unlawful; and further, in which it was also ordered that the City Council be enjoined from dispersing any funds to the special counsel. We are asked, in effect, to determine the legality of the appropriation of those funds.

In May of 1967, Bernard Weithorn, a losing candidate for councilman in a municipal election of the City of North Miami Beach, filed a suit in Circuit Court against four of the seven members of the city council who were successful in said election. In his suit, Weithorn charged the defendants with election law violations and sought certain relief, including: a finding by the court that the defendants held office contrary to law; an order that they vacate their respective offices; an order enjoining them from performing any of their official duties other than legislative actions, pending the outcome of the case; and an order granting such other relief as may be proper and necessary. After the suit was filed, the entire city council responded with the adoption of Ordinance No. 67--7 ¹ which provided that special counsel be hired and paid for by the City for the purpose of defending the Weithorn action. Thereafter, special counsel appeared in the Weithorn case and successfully defendant both the trial action ² and the appeal thereof. ³

After the Weithorn case was dismissed on appeal, the appellee here, John W. Estes, Jr., filed the case sub judice contending that the use of public funds for the payment of the Weithorn defendants' special counsel constituted an illegal use of public funds for a private purpose. The substance of the lower court's final order is recited above.

Before discussing the specific issues raised by this appeal, we should clarify that the basic question presented here is as follows: whether the City of North Miami Beach had an interest in the Weithorn controversy which was of sufficient public importance so as to justify an allocation of public funds for hiring special counsel to defend the action brought against the four councilmen and the city attorney in their individual names.

Ordinance No. 67--7 clearly sets forth in its preamble that in the opinion of the city council, the Weithorn action presented an emergency situation requiring the protection of the public welfare. It was upon this premise that the city council acted in allocating the funds to provide special counsel for the four members of the council and the city attorney being sued. The first question presented is whether the ordinance is an invalid exercise of power for the reason that the Weithorn suit was directed at the councilmen as individuals, rather than in their official capacities. We conclude that, notwithstanding the fact that each of the councilmen and the city attorney were being sued as individuals, for purposes of the municipal ordinance, the Weithorn action was properly treated as a situation affecting public interest. The logic behind our decision rests upon the fact that, had the council members been enjoined from performing their functions, as requested in the suit, the city would have been unable to operate its business affairs. That is to say, they could not proceed with certainty to execute contracts, to appoint inferior officials, to make payment of salaries, or to otherwise proceed with the city's business in a certain, deliberate manner. We feel that the concern demonstrated by the city in fearing the possible effects of Weithorn's success in his law suit is not overcome by a formality which governed the status in which the councilmen were being sued.

In Duplig v. City of South Daytona, Fla.App.1967, 195 So.2d 581, a similar situation was presented. There, the mayor of the municipality was being sued by a former city employee for defamation. It was held that the city council was warranted in providing funds because the city itself demonstrated a sufficient pecuniary interest in the outcome of the suit. In examining Weithorn's complaint, the pleadings in that case, the relief sought therein, and the consequences that might be suffered by the citizens of the municipality, we must conclude that the action was in fact directed at the defendants in their official capacities. The common underlying touchstone in Duplig and the case at bar is that there existed a pending legal action which tended to pose a threat to the effective administration of municipal government. Such an action represents, in and of itself, a circumstance sufficiently tinted with public interest as to validate the appropriation of public funds for special legal counsel.

The rule of law which permits a municipal corporation to retain a private attorney has been uniformly upheld in Florida. The general criterion is that a situation reasonably appear expedient for the governing authority to make such an employment. Pace et al. v. King, Fla.1949, 38 So.2d 823; Godard v. Campbell et al., 143 Fla. 419, 196 So. 814; City of Jacksonville Beach v. Waybright, 130 Fla. 525, 178 So. 401.

The next main question raised by the appellee essentially goes to the merits of whether the Weithorn action, having been directed at the alleged misconduct of the councilmen before they actually took office, was a proper matter for which the city could...