Marsh v. City of Richmond

Decision Date04 September 1987
Docket NumberNo. 840348,840348
Citation360 S.E.2d 163,234 Va. 4
PartiesHenry L. MARSH, III, et al. v. CITY OF RICHMOND, ex rel., etc. Record
CourtVirginia Supreme Court

L.B. Cann, III (George B. Little, Carolyn A.H. Bourdow, L. Douglas Wilder, Roger L. Gregory, Little, Parsley & Cluverius, P.C., Wilder, Gregory & Associates, Richmond, on briefs), for appellants.

J. Durwood Felton, III (William B. Cave, Felton & Cave, Richmond, on brief), for appellee.

Present: CARRICO, C.J., POFF, COMPTON, STEPHENSON, RUSSELL and WHITING, JJ., and HARRISON, Retired Justice.

CARRICO, Chief Justice.

Section 4.01 of the charter of the City of Richmond provides that the members of city council, with "the approval of the council," may be allowed their actual extraordinary expenses incurred in representing the city. Acts 1975, ch. 112. In a resolution adopted effective July 1, 1979, the council authorized the reimbursement of the actual extraordinary expenses incurred by council members during the ensuing fiscal year in an amount not to exceed $250.00 per month for the mayor and $200.00 per month for other council members. In another resolution adopted effective July 1, 1980, reimbursement of similar amounts was authorized for the year ending June 30, 1981, and for each ensuing fiscal year.

Pursuant to the resolutions, a total of $24,400 was paid to five members of the nine-member council for fiscal years 1979-80 and 1980-81. 1 On September 4, 1981, a motion for judgment was filed against the five members 2 by Richmond Independent Taxpayers Association, Inc., Helen G. Brugh, and Charles H. Trexler, Sr., on their own behalf and on behalf of all other taxpayers in the City of Richmond, at the relation of and for the City of Richmond.

In the motion for judgment, the plaintiffs alleged that the payments to the defendants constituted unlawful diversions of public funds of the city. The plaintiffs prayed for recovery of the amounts paid the defendants pursuant to the 1979 and 1980 resolutions.

The trial court heard the matter without a jury. The court awarded the plaintiffs judgment against each of the five defendants for the respective amounts paid during the fiscal years in question, plus interest.

The record shows that in May 1979, the mayor appointed "a special committee of citizens to consider the question of paying an expense allowance to members of City Council." As part of its study, the committee received an opinion from the city attorney stating that "the Council may, if it so desires, reimburse its members their actual expenses extraordinarily incurred in representing the City."

The special committee made its report under date of July 30, 1979, 3 and the first of the two resolutions in question was adopted by council on August 14, 1979, effective the preceding July 1. The resolution authorized the reimbursement to council members of their actual extraordinary expenses in an amount not to exceed $250.00 per month for the mayor and $200.00 per month for each of the other members. 4 The resolution provided that a member desiring reimbursement should submit a statement no later than the 20th day of the month for expenses incurred in the preceding month. In order to implement the resolution, a form prepared by the city attorney was prescribed. A completed form submitted by then Mayor Henry L. Marsh for the month of May 1980 was admitted into evidence as an exhibit. It reads:

Date June 5, 1980

I hereby certify that for the month of May my extraordinary expenses for which I am entitled to reimbursement pursuant to the provisions of Resolution No. 79-R119-125, August 14, 1979, are $250.

[(s) ] Henry L. Marsh

Member of Council

Except for the different amount allowed the mayor, each of the other council members requesting reimbursement filed "an identical form" in each of the months of the two-year period in question. No "detailed records" were kept of the expenditures for which reimbursement was claimed, and no proof other than the information set forth on the prescribed form was required.

An exhibit received into evidence detailed "the dollar amounts that each of [the] defendants claim[ed] in each of the categories" of expense for the two-year period. The figures shown on the exhibit were compiled for purposes of this litigation and apparently represent "only estimates of dollar expenditures." The exhibit reads:

                                                   Dell   Kenney    Marsh  McDaniel  Richardson
                                                 ------  -------  -------  --------  ----------
                Office Expenses                   1,590    2,128   24,783     8,416       2,522
                Home Expenses                     1,144    1,720    2,180     2,860       3,690
                Auto Expenses                     2,312      840    3,074       500       2,344
                Clothing                          2,000    1,000      N/A       N/A       1,460
                Drycleaning                         175    1,200      520       N/A       1,000
                Entertainment                       360    1,000      400     1,680       2,600
                Meals Out                           480      832    2,400     1,920       2,000
                Community Functions                 840      720      960     1,800       1,080
                Lost Wages                          N/A      720    2,000     3,000         N/A
                Publications                        200      N/A      N/A       300         N/A
                Miscellaneous                       288      120    1,000     4,130         610
                                                 ------  -------  -------  --------  ----------
                Total                            $9,389  $10,280  $37,317   $24,606     $17,306
                

Total Funds Received for period

7/1/79 through 6/30/81 $4,000 $ 4,800 $ 6,000 $ 4,800 $ 4,800

The item of $24,783 claimed by former Mayor Marsh for "Office Expenses" represented 25% of the rental and other expenses related to the operation of his law office. He estimated that 25% of the time he spent at his office was devoted to council affairs. The amounts claimed for the same item by other council members represented the cost of maintaining separate offices for the conduct of council business.

The item for "Home Expenses" claimed by all five council members represented 25% of the expenses related to the maintenance and operation of their homes and, except in the case of Mrs. McDaniel, included mortgage payments. The members estimated that they used their homes 25% of the time for council business.

The item of "Auto Expenses" claimed by all five members represented the portion of the cost of operating private automobiles allocated to the conduct of council business. The estimated mileage included trips to and from council meetings.

The item for "Clothing" claimed by three members represented the cost of additional wearing apparel needed for council meetings and other public appearances. The item for "Drycleaning" claimed by four members represented the "extra portion" of drycleaning expenses occasioned by service on council.

"Entertainment" expenses included the estimated cost of entertaining out-of-town visitors and dining with others incident to city- related business. "Meals Out" represented food costs incurred by council members when unable to dine at home because of council meetings and other council business.

The item for "Community Functions" included the price of tickets for attendance at community affairs. This expense was justified on the basis that council members were expected to appear at community functions.

Three members made claim for "Lost Wages," explained as the value of vacations or annual leave the members were unable to take because of the press of council business. Two members charged for the cost of "Publications" related to the performance of council duties.

All five members made claims under the "Miscellaneous" heading. Charges included child-care expenses and the cost of legal services, postage, photographs, and financial help to constituents. One member claimed $1,500 as the cost of calendars for constituents.

Other evidence in the case showed that the members of council not requesting reimbursement incurred the same types of expense that were claimed by the five-member majority. It was further established that all members of council incurred similar expenses both before and after the two-year period at issue in the present case.

The defendants' assignments of error present three questions:

1. Did the trial court improperly substitute its judgment for the discretion of city council?

2. Did the trial court err in refusing to admit into evidence the report of the special committee and the opinion of the city attorney?

3. Did the trial court erroneously rule that the expenses involved were not extraordinary?

The defendants contend that the trial court exceeded the permissible scope of judicial review and improperly substituted its own judgment for the discretion of city council. The defendants emphasize the clause in § 4.01 of the city charter which provides that the allowance of extraordinary expenses shall be "subject to the approval of the council." They then argue that the clause grants the council broad discretion.

It was conceded in the trial court, the defendants maintain, that city council properly exercised its discretion in finding council members should be reimbursed for extraordinary expenses, in fixing the maximum amount of reimbursement, and in prescribing the procedure for obtaining reimbursement. Council made the further and important finding, the defendants assert, that " 'extraordinary expenses' were being incurred" by council members.

This latter finding, the defendants contend, also involved the exercise of discretion and constituted legislative action entitled to a presumption of correctness. Then, citing Portsmouth v. Chesapeake, 205 Va. 259, 136 S.E.2d 817 (1964), the defendants argue that the trial court could not disturb council's finding "unless clearly shown to be arbitrary or unreasonable." Id. at 266-67, 136 S.E.2d at 823. Yet, the defendants complain, the trial...

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