La Paz County v. Upton
| Decision Date | 13 July 1999 |
| Docket Number | No. 1 CA-CV 98-0607.,1 CA-CV 98-0607. |
| Citation | 195 Ariz. 219,986 P.2d 252 |
| Parties | LA PAZ COUNTY, Plaintiff-Appellee, v. Gregory Q. UPTON, Defendant-Appellant. |
| Court | Arizona Court of Appeals |
Janet A. Napolitano, The Attorney General by Kathryn L. Leonard, Assistant Attorney General, Phoenix, Attorneys for Plaintiff-Appellee.
Campana, Vieh, Shore, Owens & Loeb, P.C. by Donald O. Loeb, Scottsdale, Attorneys for Defendant-Appellant Scottsdale.
¶ 1 Appellant Gregory Upton appeals from the trial court's grant of summary judgment in favor of La Paz County ordering appellant to repay travel expense reimbursements he received during his tenure on the county's Board of Supervisors. For the reasons set forth below, we reverse the summary judgment in favor of the county and remand this case for further proceedings consistent with this opinion.
¶ 2 From 1992 through 1996, appellant was a member of the county's Board of Supervisors. During that time, he submitted numerous expense reimbursement requests, including claims for round-trip travel expenses from his home in Bouse to the site of certain special projects located elsewhere in the county, or from his home to the board offices in Parker on days when no board meetings were held. The board approved these travel expense reimbursement requests and paid him a total of $11,215.00.
¶ 3 After appellant completed his term on the board, the county filed this action against him claiming that the $11,215.00 in travel expense reimbursement had been paid without statutory authority. Appellant countered that the money had been lawfully paid or, alternatively, that the county should be estopped from recovering it. The county moved for summary judgment, which the trial court granted. The trial court thereafter denied appellant's motion for new trial and entered judgment in the county's favor. Appellant timely appealed.
¶ 4 We address three issues. The first is the extent of the Board of Supervisors' statutory authority to reimburse appellant for travel expenses that appellant incurred while he was a member of the board and traveled from his home in connection with special projects that the board had appointed him to supervise. The second is whether the county is estopped from seeking recovery of these disputed reimbursements. The third is whether the county was required to name as defendants in this action the other members of the board who served with appellant and approved the reimbursements. Because this appeal is from a grant of summary judgment, our examination of these issues will be conducted de novo, both as to proper application of the law and as to the existence of a genuine issue of material fact. Dole Food Co. v. North Carolina Foam Industries, 188 Ariz. 298, 301, 935 P.2d 876, 879 (App.1996).
¶ 5 Appellant contends he was entitled to travel expense reimbursement because he had been appointed by the board to supervise certain special projects being developed by the county. The reimbursements claimed were for travel from his home to a project site, or for travel to the board offices on non-meeting days for duties connected with these special projects. Appellant claims, and the county does not dispute, that the appointment required appellant to assume duties beyond the normal duties of a board member. ¶ 6 Appellant acknowledges that the travel at issue was not for attendance at board meetings. Consequently, appellant agrees that Arizona Revised Statutes Annotated ("A.R.S.") section 11-215(A) (1990), which provides that supervisors who live "without the limits of the county seat shall be allowed mileage from their home to the corporate limits of the county seat when attending meetings of the board," is not applicable. Appellant argues, however, that A.R.S. sections 11-603 (1990), 11-604 (1990), and 38-622 (1996) authorize the reimbursements. We begin with an examination of these statutes.
¶ 7 Section 11-603 defines the expenses of county government and provides:
The expense of maintaining the government consists of official salaries, fees and mileage, fees and mileage of jurors and witnesses, county printing and advertising, books and stationery, feeding county prisoners, the care of the indigent sick, water, wood, lights and like supplies for county institutions and insurance and repairs of county buildings.
Section 11-604 describes the mechanism to create funds to transact county business. Subsections (A) and (B) provide for establishment of a salary fund and a sick pay fund, respectively, and subsection (C) provides:
The board may, in like manner, create and make payments from such other county funds as necessary for the proper transaction of the business of the county.
Section 38-622(A) provides:
When the official duties of a public officer, deputy or employee require him to travel from his designated post of duty, he shall be allowed expenses and allowances therefor.
¶ 8 The 1928 versions of these statutes, which are identical in all material respects to the current versions, were at issue in Austin v. Barrett, 41 Ariz. 138, 141, 16 P.2d 12, 13 (1932).1 In that case, the supreme court held that these statutes did not authorize mileage payments to a member of the county board of supervisors for travel from his home to the county seat to attend board meetings.2 In reaching this conclusion, the court first noted the general rule that no claim against the county is legal unless the claimant can "show some statute affirmatively authorizing it, either directly or by reasonable implication." Id. While the court acknowledged that the Arizona Attorney General had, since 1915, opined that such mileage payments were authorized by these statutes, the court rejected this interpretation. The primary reason was that the court feared that approving such payments could impose too heavy a financial burden on the state and its political subdivisions. The court reasoned, inter alia, that the predecessor to section 38-622 was not limited to county supervisors but could apply to every public officer in the state, each of whom could claim mileage merely for traveling from home to work. The court concluded that the legislature did not intend such "momentous consequences," and therefore refused to find a reasonable implication from these statutes that payment of such expenses was authorized. Id. at 149, 16 P.2d at 16.
¶ 9 The county places its reliance on Austin, arguing that because the same statutes cited and relied on by appellant were interpreted by the Austin court as providing no basis for any expense reimbursement, we must therefore reject appellant's claim. However, we do not agree with the county's broad characterization of Austin's applicability.
¶ 10 We first note that the Austin court was careful to limit its holding to mileage payments for a member's travel from his residence to the county seat for attendance at a board meeting. The court undertook explicitly to interpret the subject statutes so as to prevent the daily ritual of a public official traveling from home to work from becoming a compensable event. Authorizing reimbursement for such "commuting" travel simply could not be "reasonably implied" from the language of the statutes.
¶ 11 Austin specifically observed that it was not deciding whether the statutes might by reasonable implication authorize expenses incurred by supervisors going from "place to place in the county in the performance of their official duties." Id. at 148-49, 16 P.2d at 16. Thus, Austin left open the question we face here. That is, do the subject statutes by reasonable implication authorize payment of mileage expenses to a board member when the travel is for a specific county project and the member's participation in the project is beyond the normal duties of a supervisor?
¶ 12 Thirteen years after Austin, our supreme court addressed statutory authorization for similar expenses in Lee v. Coleman, 63 Ariz. 45, 159 P.2d 603 (1945), where the court gave an expansive reading to the predecessor to section 38-622, one of the statutes considered by the Austin court. In Lee, two members of the Apache County Board of Supervisors were sued by the plaintiff taxpayer to recover, on behalf of the county, mileage and other expenses the board members had been paid for traveling about the county looking after county roads and bridges. The board members had also incurred expenses in traveling to conferences outside the county, and recovery for payment of these expenses was sought. The gist of plaintiff's claim, and the issue on which the case was decided, was whether the payments were illegal as having been paid out of the wrong county fund. The court decided the trial court had erred in its ruling on this issue and remanded for further proceedings. In light of the remand, the court determined that it must decide whether there was statutory authorization for reimbursing expenses incurred for the out-of-county travel because this issue would come up before the trial court.
¶ 13 The Lee court did not mention Austin or the predecessor to sections 11-603 or 11-604, but, as noted above, the court did refer to and construe the 1939 predecessor to section 38-622(A),3 which read then essentially as it now reads and as it read at the time of Austin. The court first observed that this statute contemplated "that public officials may be required to incur travel expense in performance of their official duties." 63 Ariz. at 60, 159 P.2d at 609. The court then held that a proper interpretation of the statute was that reimbursement for the out-of-county travel was authorized. The court acknowledged that while a county officer is generally not entitled to reimbursement for expenses incurred in performance of official duties, "[i]n most jurisdictions ... it is held that a proper interpretation of the statutes authorizes the payment of necessary incidental expenses of county officials, such as...
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