John Cook’s Request for Legal Expenses Reimbursement and El Paso Times Incompetence

As most of you already know, on Tuesday, July 23, 2012, city council voted unanimously to deny John Cook’s claim for his legal fees. As is the process when filing a claim against the municipality, John Cook now has the option to file a lawsuit against the city. As part of my questions with John Cook, on the same day as city council’s action, he provided me three additional pieces of information that I think would be of interest to you as they relate directly to your taxpayer monies.

But, first, as is the case with the incompetent El Paso Times they once again do as they please completely ignoring the truth even after it is pointed out to them. In article by Cindy Ramirez on July 24, 2013, the El Paso Times ran with the following headline; “El Paso City Council votes to deny former mayor’s $700,000 legal claim”. John Cook provided me an email that his attorney, Mark Walker had sent to El Paso Times reporter Daniel Borunda, on July 23, 2012. In the email Walker points out to Daniel Borunda that the “$700,000 figure in the headline and at the lead of the article are inaccurate”. Borunda had published an article in the El Paso Times titled; “Former El Paso Mayor John Cook files $700K city claim” on July 19, 2013.

So what does the El Paso Times do? It runs this headline in Ramirez’ article; “El Paso City Council votes to deny former mayor’s $700,000 legal claim”! The incompetence of the paper just oozes from each click of its website.

In the case of Cook’s claim, after the vote, the city issued the following statement;

“Today, relying on legal advice from special counsel, the El Paso City Council denied former Mayor John Cook’s claim for payment of legal fees stemming from his lawsuit relating to recall efforts by Tom Brown Ministries and the Word of Life Church.  The Council’s decision turned on multiple factors, including the fact that Cook initiated this suit in his individual capacity, that the litigation was not authorized by the City, and that the underlying litigation is still pending.

Neither Mr. Cook’s assertion that the November 2010 referendum was improper nor his success in enjoining illegal corporate campaign activity entitles him to payment of his attorneys’ fees.

Fortunately for Mr. Cook, if he prevails in the pending case, he will be able to ask the trial court to order that his fees be paid by those found to have harmed him.”

Although the media explains Cook’s claim in sound bites and digested morsels the fact is that the question remains exactly what is the basis for his claim that the city owes him for his legal fees? Rather than rely on the morsels of information I thought it would be better if you got the opportunity to read what it is he has submitted to the city attorney and the city council representatives to give you an opportunity to judge the merits of his case, after all, it is your money he is asking for.

The three documents he provided me are, in order: Email from Mark Walker to Daniel Borunda to correct the inaccurate headline. A memorandum John Cook submitted to the El Paso City Council on April 4, 2013, and the text of his lawyer’s document he had previously submitted to the city attorney’s office and to the individual city council representatives on Monday, July 22, 2013.

Email to Daniel Borunda

From: “Walker, Mark” <mwalker@*****>
Date: July 23, 2013, 9:31:29 AM MDT
To: “dborunda@elpasotimes.com” <dborunda@elpasotimes.com>
Subject: Article on Mr. Cook’s claim for indemnity/reimbursement

Daniel,

I was out of town in the mountains when the above-referenced article was published.  On behalf of Mr. Cook, I would respectfully ask that the paper publish a clarification.  Mr. Cook accurately described the total costs of the litigation brought about by the City’s improper allowance of an illegal referendum election in 2010.  The costs have been more than $500,000, but less than $600,000.  The $700,000 figure in the headline and at the lead of the article are inaccurate, although still less than the projected cost of an illegal recall election that was avoided, not to mention the costs of special elections to fill any vacancies.

Thank you for your consideration.

Regards,

Mark C. Walker

 

M E M O R A N D U M

TO: El Paso City Council

FROM:  John F. Cook

DATE: April 4, 2013

SUBJECT: Request for Indemnification and Reimbursement for Legal Expenses

Members of Council:

I respectfully request that the City indemnify and reimburse me for the significant legal fees and expenses that I have incurred due to the fight against an illegal recall election that was based on legislative action to reverse the illegal referendum measure that was submitted to the voters in November, 2010.  The “Traditional Family Values” referendum, which was passed at that time, never should have been submitted to the voters.  If the illegal referendum had not been submitted to the voters, I never would have had to cast a tie-breaking vote on June 14, 2011, to pass an ordinance to restore benefits that were “taken away” by an illegal referendum.  The illegal campaign to recall Representatives Ortega, Byrd, and me was retribution for our exercise of legislative duties, and I never should have been required to seek legal assistance to defend myself against the recall.  As a simple matter of the application of the rule of law, I should be entitled to indemnification and reimbursement by the City for these expenses, and have them paid as the City would any other indemnification.

Although I can provide you with a longer legal memorandum, I want to outline below some of the important points for your consideration.

The November 2010 Referendum Was Illegal.

As the City Attorney’s office has made clear in the litigation over the ballpark and associated petitions, there is only a very limited right of referendum in El Paso, and there is no referendum right to reverse a legislative action of the City.  As the attached brief filed in Travis County on January 31, 2013, correctly states, the petitions were “citizens’ challenges [that] attempt to repeal or restrict validly enacted resolutions and ordinances rather than to propose new legislation.  Such attempt is in the nature of a referendum – not an initiative – a right explicitly limited by the City Charter to collective bargaining agreements.” (p.3). “The El Paso City Charter explicitly limits the right to referendum to approval of collective bargaining agreements ….  Principles of statutory interpretation compel the conclusion that the City Charter affords no right to place the proposed matters on the ballot ….” (p.7). The citizens’ attempt to exercise a right of referendum through the initiative process is beyond the City Charter’s express limitations.  Because the City Charter is the sole source of the right to initiative under Texas law, the City in fact has no authority to place any proposed referendum matter on the ballot (even if termed an ‘initiative’) were not permitted by its City Charter.” (p.8).

Without restating the November 2010 ballot measure here, it is beyond dispute that its purpose was to overturn the vote of the City Council on August 26, 2009, which extended health benefits to domestic partners of City employees.  In addition to the multiple news reports of the measure, which correctly identified it as a “referendum,” we only have to look at the stated reasons of the measure’s proponents to clearly identify it as a referendum.  In the attached October 26, 2010 letter from Tom Brown to all City employees, he states, among other things, that “[t]he fact is the proposed ordinance is written directly to reverse the city council’s domestic partnership plan.”  He also said that “[t]he purpose of the proposed ordinance is to stop public funding of health insurance for homosexual and unmarried partners of city employees.”

The City Attorney never should have allowed the measure to go to the voters in November, 2010, since it was clearly a referendum that the City had no authority to present to the voters.  Especially in light of the recent pleadings, I do not understand why the City Attorney’s office treated the results of the referendum vote as if the referendum had been a legal measure.  The measure should have been declared void or invalid, and we never should have been involved in the federal court litigation.  Likewise, we never should have been presented with a situation in June, 2011, in which the Council faced the apparently incorrect choice of passing an ordinance to restore benefits as voted in August, 2009, or let them be restricted in accordance with a ballot measure for which there existed no legal authority.  At some point the City should have said that the “Traditional Family Values” referendum had no effect.  Instead, a divided Council, with my tie-breaking vote, adopted a legal ordinance on June 14, 2011 to restore benefits.

The Recall Litigation Arose Only from My Exercise of Legislative Duties Following the Illegal Referendum.

The facts and motives of the recall effort are so well known that I do not need to restate them here.  Tom Brown and others led the effort to recall me, along with Representatives Byrd and Ortega, just because of the June 14 vote.  They would have attempted to recall Representatives Quintana and O’Rourke except that their terms expired.  Pastor Brown and the others never claimed that they were attempting to recall me for anything I did in my personal life or for malfeasance, but only because we cast votes they did not like.

I know that I, along with other elected officials, am normally entitled to legislative immunity for our legislative actions.  In my years on City Council and as Mayor, I have seen numerous instances in which City officials were afforded representation by the City in legal matters, both in investigations and in lawsuits, because the issues in dispute arose from or were related to the performance of official duties.  This situation is really no different than those, in which the City indemnified and provided representation to a City official, either through the City Attorney’s office or by the engagement of outside counsel.  The City Attorney’s office did not help me fend off the recall campaign, and so I was forced into engaging outside counsel on my own to legally defending myself and Representatives Byrd and Ortega against the attempts to recall us for our June vote to rectify the illegal referendum ordinance.  In fact, on appeal, the City’s brief even took a position contrary to mine, though I proved our position legally and ethically correct.

Although the City Council budgeted $800,000 for the cost of an April, 2012 recall election, the money was never spent.  The El Paso Court of Appeals on February 17, 2012, issued an opinion and judgment in my favor, in which they found that my claims of election law violations were correct, and that no election would be held.  My litigation and appeal stopped the efforts to recall Representatives Byrd, Ortega, and me.  In finding that the Temporary Restraining Order never should have been dissolved, the El Paso Court of Appeals held that “the trial court’s comments … indicate an abdication of the judicial responsibility it had to enforce the laws.  A trial court has no discretion in determining what the law is or in applying the law to the facts .… Here, the trial court’s actions hindered the judicial process and deprived Cook of the relief to which he was entitled.  It is essential to the preservation of the independence of the judiciary and public confidence in the judicial process that a judge be faithful to the law and not be swayed  by public clamor or fear of criticism.” 

If there had been a recall election, not only would the citizens of El Paso had to foot the bill for that election, but also a special election and a possible runoff election that could not have been held during the primary or general elections.  Though expensive, the recall litigation saved El Paso taxpayers significant money, and upheld the rule of law in this community.

Request for Indemnification and Reimbursement.

I do not come to you lightly with this request.   I have incurred over $500,000 in legal fees and expenses due to this litigation, which would not have been necessary if the November 2010 measure had not been improperly submitted to voters. 

My team spent a lot of time and effort investigating and collecting evidence before we filed suit to stop the submission of illegally funded and obtained petitions.  By the time that we filed suit in September, 2011, and obtained the Temporary Restraining Order, the fees and expenses were manageable, and under $20,000.  However, the trial court dissolved the TRO without evidence, and that caused a cascade of events that dramatically increased expenses.  The opinion of the Court of Appeals says all that needs to be said about what initially happened at the trial court.  The TRO never should have been dissolved.  Without that act, the majority of our costs and expenses would not have occurred.

Over the next few months, we faced a barrage of motions without any basis in law, or that were meant for harassment, and improper instruction of effort, by the Defendants’ then-counsel, Theresa Caballero, Stuart Leeds, and counsel from Kansas for the Alliance Defense Fund.  We had to file a petition for writ of mandamus for the improper dissolution of the TRO, but the City Clerk certified the petitions before the Court of Appeals could act.  We had several hearings before the trial judge denied our request for a temporary injunction just before Thanksgiving, 2011. 

We then started the process for an interlocutory appeal to the El Paso Court of Appeals, which included paying the substantial costs for transcripts and records.  We filed briefs and motions to supplement the record, and even had to respond to the City’s brief opposing me.  We had to fight not only over Texas Election Code campaign finance violations, but also the efforts of the other side to make this into a constitutional case about church free speech.

After all that intense and long effort, by the time we won before the El Paso Court of Appeals, I had incurred over $350,000 in fees and expenses.  We went from a very manageable amount of expenses to a much larger amount because the TRO was dissolved, which led to a cascade of problems and expenses.  In other words, the rule of law was vindicated with the win before the Court of Appeals, but it cost over $300,000 to reach that point.

Then the other side attempted to appeal to the Texas Supreme Court, and filed two emergency motions for stay, to which we had to respond.  Pastor Brown and the other defendants then filed two separate appeals, one a petition for writ of mandamus, and the other a petition for review.  We went through a process over several months of preparing preliminary responses on both series of appeals, along with briefing on the merits.  Finally, in December, 2012, the Texas Supreme Court denied both appeals.  After all of the briefing and work before the Texas Supreme Court, and while continuing to prosecute the case in the trial court, my fees and expenses reached over $530,000 by the end of October, 2012, when all of the briefing and motions were done.

While continuing to battle in the Supreme Court, my team continued to represent me in an effort to get Pastor Brown and the others to pay my fees and expenses.  Our efforts resulted in the unusual circumstance of the trial court finding the Kansas lawyer in violation of Texas law and fining him almost $6,000.  Additionally, Ms. Caballero and Mr. Leeds withdrew from the case in the early fall.  You have also probably read recent news about our efforts to collect the awarded appellate costs of over $8,000, which our opponents ignored until a deputy showed up to collect.

The City went public with the correct information about the very limited rights of referendum in December, 2012, and January, 2013.  I have made efforts to raise campaign funds, and our team has made best efforts to reduce time and expense, but overall I have incurred $579,939 in fees and expenses to date.  After allowing for payments, including collections from the opponents, to date I still have $551,044 as an unpaid balance.

I respectfully request that the City indemnify and reimburse me for the balance.  I would happily assign to the City my rights under the Texas Election Code to recover fees and expenses from the Defendants in the still-pending case before the trial court.

 

Text of his attorney’s document previously provided to the city attorney’s office and to city council representatives on Monday, July 22, 2013.

I. THE NOVEMBER 2010 BALLOT MEASURE WAS AN ILLEGAL REFERENDUM THAT SHOULD NOT HAVE BEEN SUBMITTED TO THE VOTERS.

A. The Right of Referendum is Very Limited in El Paso and Does Not Authorize the City to Submit to Voters Measures to Overturn Prior City Actions by Ordinance or Resolution. Initiative and referendum petitions are methods to allow direct citizen participation in the legislative process at state or local levels.  Despite the fundamental nature of the right to vote, the right to an initiative or referendum is not a federally guaranteed right, nor is it guaranteed under the Texas Constitution. [1] The powers of initiative and referendum are considered powers reserved to the people by charter. [2]

Initiative and referendum petitions are part of the same legislative process, but seek very different results.  Broadly stated, an initiative is an effort to pass a law or ordinance to affect policy in the future.  A referendum aims to review, for approval or disapproval, a prior action.  The rights of initiative and referendum in local government do not arise from state law, but must be based on grants in the El Paso City Charter, [3] which is the document that provides the basic framework for municipal governance.

El Paso City Charter Section 3.11 is the sole source of the right of initiative and Section 3.11A the sole source of the right of referendum.  Section 3.11A provides only a very limited right of referendum:  “A referendum election may be called by the City Council when a collective bargaining agreement between the City and an employee organization so provides.”  The City Charter does not allow for any right of referendum in any other circumstance.  Nor does the Charter permit a nonbinding referendum to go to the voters.  It does not matter what title proponets affix to a petition, or whether they call it an “initiative,” as the purpose of what is to be accomplished determines whether the measure is a “referendum.”

The City of El Paso’s “Brief in Support of Original Petition for Expedited Declaratory Judgment” [4] summarizes the law of referendum in El Paso well:  the petitions were “citizens’ challenges [that] attempt to repeal or restrict validly enacted resolutions and ordinances rather than to propose new legislation.  Such attempt is in the nature of a referendum – not an initiative – a right explicitly limited by the City Charter to collective bargaining agreements.” (p.3). “The El Paso City Charter explicitly limits the right to referendum to approval of collective bargaining agreements ….  Principles of statutory interpretation compel the conclusion that the City Charter affords no right to place the proposed matters on the ballot ….” (p.7). The citizens’ attempt to exercise a right of referendum through the initiative process is beyond the City Charter’s express limitations.  Because the City Charter is the sole source of the right to initiative under Texas law, the City in fact has no authority to place any proposed referendum matter on the ballot (even if termed an ‘initiative’) were not permitted by its City Charter.” (p.8).

We agree with the City of El Paso that, “the City Charter, on its face, does not provide the right to submit a component of any validly enacted ordinance or resolution to a referendum of the people.” [5] Accordingly, if the City Charter does not permit a referendum on a resolution or ordinance duly passed by El Paso City Council to be submitted to the voters, it follows that the City Charter does not permit a referendum on healthcare resolutions or ordinances to be submitted to voters.

B. The November 2010 “Traditional Family Values” Measure Was a Referendum.

It is undisputed that the avowed purpose of the petitions to submit the “Traditional Family Values” ballot measure to the voters was to overturn the City Council’s August 26, 2009 resolution vote to extend healthcare benefits to domestic partners of City employees.  In addition to the multiple news reports of the measure, which correctly identified it as a “referendum,” we only have to look at the stated reasons of the measure’s proponents to clearly identify it as a referendum.  In the attached October 26, 2010 letter from Tom Brown to all City employees, he states, among other things, that “[t]he fact is the proposed ordinance is written directly to reverse the city council’s domestic partnership plan.”  He also said that “[t]he purpose of the proposed ordinance is to stop public funding of health insurance for homosexual and unmarried partners of city employees.”

A sample of the many news reports that properly characterized the ballot measure as a “referendum” or describe its use to overturn City Council action follow:

http://www.elpasotimes.com/ci_14401773?IADID=Search-www.elpasotimes.com-www.elpasotimes.com

http://www.elpasotimes.com/news/ci_16239434

http://www.elpasotimes.com/news/ci_16411101

http://www.elpasotimes.com/news/ci_16517834

http://www.elpasotimes.com/news/ci_16517834

http://www.nytimes.com/2011/10/02/us/in-el-paso-a-storm-over-benefits-for-gay-partners.html?pagewanted=all&_r=0           

C. The November 2010 Ballot Measure Should Not Have Been Submitted to a  Vote, Because the City Was Not Authorized to Do So.

Despite the clear authority discussed above, for unknown reasons the City Attorney’s office did not advise Council that there was no legal authority to submit the measure to the voters, and instead allowed the measure to proceed to the voters at some cost to the public.  Here are pre- and post- 2010 election interviews by City Attorney Charles McNabb and Assistant City Attorney Elain Hengen:

http://www.elpasotimes.com/news/ci_16076853

http://www.elpasotimes.com/news/ci_16613217

The interviews reveal not only some confusion between initiative and referendum in the press, but that the City Attorney’s office makes no analysis of the measure as a referendum that exceeds the authority of the City to present to the voters.

Referendum petitions and measures were apparently rarely addressed before the 2010 ballot measure, and we can find no authorities that indicate that the City has previously litigated the issue of whether a referendum can be submitted to the voters.  Issues such as this sometimes require a fresh viewpoint and a return to review of the basic governing charters.  It appears that, unlike the current ballpark petition litigation, the City Attorney’s office did not review the issue of the lack of Charter authority for a referendum.

D. The Illegal Recall Effort Was a Direct Result of Legislative Actions and Meant to Punish Elected Officials for Their Vote.

The facts and motives behind the 2011 circulation and submission of the petitions to recall Mayor John Cook and City Representatives Susie Byrd and Steve Ortega are well known and need not be restated here.  Much of the history about the June 14, 2011 vote in which Mayor Cook cast the tie-breaking vote to pass an ordinance to ensure that the 2009 benefits were not stripped from beneficiaries is set forth in the opinion of the El Paso Court of Appeals. [6] There has never been any contention that the purpose of the effort to recall Cook, Byrd and Ortega was for anything other than the exercise of their legislative duties in adopting the ordinance on June 14.

The federal court litigation [7] that preceded the June 14 City Council vote did not raise any issues regarding the scope of referendum, and the City did not seek to void the results of the referendum vote.  The City Council on June 14, 2011 passed a second ordinance, amending the November 10, 2010 Ordinance to restore the benefits to those scheduled to lose them. [8] The City Council vote on the June 14, 2011 Ordinance was evenly split among its voting members, and Cook cast the tie-breaking vote to restore benefits. Cook was joined by City Representatives Byrd and Ortega in that vote, along with former Representatives Rachel Quintana and Beto O’Rourke.

Cook and the other City Representatives relied on advice from the City Attorney’s Office in passing the June 14, 2011 Ordinance. [9] In passing the ordinance, Cook and the City Representatives exercised the legislative functions delegated to them under the El Paso City Charter.  The United States Supreme Court has declared the act of voting for an ordinance as “quintessentially legislative.” [10] 

El Paso is a home rule city, deriving its power from the Texas Constitution. [11] The El Paso City Charter states at Section 4.1 (Powers of the Mayor) that “The Mayor shall be a member of and preside over the City Council, having the power to  . . . break tie votes . . . .” [12] The June 14, 2011 Ordinance was a valid, legal ordinance, passed in accordance with the El Paso City Charter.  Upon his election, Mayor Cook swore to an oath of office that states “I will faithfully execute the duties of the office . . . and will to the best of my ability, preserve, protect, and defend the Constitution and laws of the United States and of this State, so help me God.” [13] Article III of the City Charter vests the legislative duties in City Council, and Sections 3.9 establishes the procedure for the legislative functions.  Section 3.9.C requires that five types of action are allowed only by adoption of ordinance. [14] Otherwise, Council may exercise its legislative power by other means, such as resolution.

E. The Recall Litigation Was Only Necessary Because of the Exercise of Legislative Duties and To Protect Against Texas Election Law Violations.

Soon thereafter, the Defendants began an illegal campaign to circulate and submit petitions to recall Cook and City Representatives Byrd and Ortega.  The history, and legal bases, of the recall litigation is well reported in the opinion of the Court of Appeals. [15] Since neither the City nor law enforcement officials took action, Cook was left only with civil remedies against Tom Brown Ministries, et al., in accordance with Texas Election Code § 235.081.  This section entitles a person who is being harmed or is in danger of being harmed by a violation or threatened violation of its provisions to obtain the remedy of injunctive relief to prevent the violation from continuing or occurring. [16]  The Court of Appeals found violations of the Texas campaign finance laws, including those that ensured that recall elections were subject to the same disclosure and restriction requirements. [17]

Although Tex. Elec. Code § 253.131 provides for liability to the violator, the policy behind the statute is clear that the officeholder, in this case in the context of a recall election, should not have to bear his own attorney’s fees when faced with violation of laws under Chapter 253.  Further, Section 253.133 recognizes the harm a violation inflicts upon the body politic, in creating damages liability to the state for a violation of Chapter 253. [18]

II. COOK IS ENTITLED TO INDEMNIFICATION AND REIMBURSEMENT UNDER LEGISLATIVE OR OFFICIAL IMMUNITY.

A. Legislative Immunity.

Texas courts have long recognizedd that individuals acting in a legislative capacity are immune from liability for those actions. [19] “The legislative immunity doctrine is deeply embedded in Anglo-American law, serving to encourage free and open debate.” [20]  “The doctrine is not intended to protect individual legislators, but instead serves the public’s interests.” [21] The United States Supreme Court has articulated the critical concerns that underlie the doctrine:

The threat of liability can create perverse incentives that operate to inhibit officials in the proper performance of their duties.  In many contexts, government officials are expected to make decisions that are impartial or imaginative, and that above all are informed by considerations other than the personal interests of the decisionmaker.  Because government officials are engaged by definition in governing, their decisions will often have adverse effects on other persons.  When officials are threatened with personal liability for acts taken pursuant to their official duties, they may well be induced to act with an excess of caution or otherwise to skew their decisions in ways that result in less than full fidelity to the objective and independent criteria that ought to guide their conduct. [22]

“Legislative immunity derives largely from the Speech and Debate Clauses of the Texas and federal constitutions, which, in turn, emobdy fundamental separation-of-powers tenets.” [23]  “The legislative immunity doctrine recognizes that it is ‘not consonant with our scheme of government for a court to inquire into the motives of legislators.’” [24]  “Courts have extended the legislative immunity doctrine beyond federal and state legislators to other individuals performing legitimate legislative functions,” [25] including mayor and city council members. [26]

B. Official Immunity.

Similarly, a public official who is not engaged in a legislative function, but neverthleless performs official duties, is entitled to “official immunity,” which “protects public officials from suit arising from performance of their (1) discretionary duties (2) in good faith (3) within the scope of their authority.” [27]  Like legislative immunity, “[c]ommon law official immunity is based on the necesity of public officials to act in the public interest with confidence and without the hesitation that could arise from having their judgment continually questioned by extended litigation.” [28] “’The public would suffer if government officials, who must exercise judgment and discretion in their jobs, were subject to civil lawsuits that second-guessed their decisions.’” [29] Although public officials may err in the performance of their duties, the “existence of immunity acknowledges this fact, but recognizes that the risk of error is preferable to intimidation from action at all.” [30]  “In addition, some of the most capable candidates would be deterred from entering public service if heavy burdens on their private resources from monetary liability were a likely prospect for errors in judgment.” [31]

Whether the actions by Cook, Byrd and Ortega that led to the recall litigation are best described as legislative or the performance of official duties, immunity attaches, for which Cook is entitled to reimbursement or indemnification.

C. Reimbursement or Indemnification for Attorney’s Fees.

A municipality has the common law authority to reimburse a municipal officer when (i) the suit serves a public and not merely a private interest and (ii) the actions or omissions upon which the lawsuit is based (whether the official is the plaintiff or defendant) were undertaken in good faith and within the scope of official duties.  The authority of Texas municipalities to employ or otherwise fund counsel to represent individuals has been long-recognized in situations analogous to the current situation. [32]  Texas common law permits the payment of attorney’s fees (provision of counsel or reimbursement) if (1) the suit involved a public interest or, stated conversely, if payment of legal fees serves not merely a private interest [33] and (2) the actions or omissions upon which the lawsuit is based (whether the official is a plaintiff or defendant) were undertaken in good faith and within the scope of official duties. [34] 

If an act or omission constitutes a discharge of a duty either imposed or authorized by law, such is within the scope of official duties. [35] Typically, though not always, the power to pay attorney’s fees is exercised in the defense of an action, though the discretion is equally applicable in cases where the indemnified party is the plaintiff. [36] Indeed, the key factor in the analysis is not whether the indemnified officer is the plaintiff or the defendant, rather, it is whether the act undertaken by the officer relates directly to a matter in which the city has an interest, including whether the matter affects municipal rights or property, or the rights or property of the municipality’s citizens, which the officer had the duty to protect or defend.  This “interest in the matter” is what allows the municipality broad discretion to reimburse attorney’s fees, even in cases when the act undertaken by the officer for which reimbursement is provided was not undertaken in the officer’s official capacity but, nonetheless was in connection with the discharge of the officer’s duties. [37]

Although there are no cases directly on point, Chandler v. Saenz, is instructive. [38] In Chandler, the court allowed the city council to use city funds to pay attorney’s fees in the defense of a suit disputing the proper statute governing the election of city officers.  In finding the expenditure appropriate, the court stated “This is not an election contest between parties as individuals, but a suit for injunction against the governing body of said city, the effect of which would be to disqualify and remove from office a majority of the city alderman and thereby disrupt the lawful functions of the city council.  Id. at 89-90.  As in Chandler, Cook and Council Representatives Byrd and Ortega were the nominal targets of the recall election, but the target itself was the legislative action of El Paso City Council.  The recall effort was intended to remove elected officials from office and the disruption of the lawful legislative functions of the El Paso City Council.

The scope of legal services and fees provided is not limited to the defense of lawsuits, but include a wide range of protection of legal interests.  Much of the law in this area has been shaped by Attorneys General Opinions.  “A political subdivision of the state [of Texas] . . . may provide legal representation for an officer or employee or pay the officer’s or employee’s attorney fees as they accrue if the political subdivision is authorized to do so either by statute or under the common law.  Numerous opinions of this [Office of the Attorney General of Texas] recognize a political subdivision’s common-law authority to provide legal representation to an officer or employee.” [39]  A brief summary of some of the relevant Attorneys General Opinions is below:

  • Att’y Gen. Op. No. H-70 (1973).  School board was authorized to provide liability insurance to protect its trustees from suits against them individually for acts or omissions committed in the good faith discharge of their official duties.  Further stating that the authority is limited to those situations where the legitimate interests of the district – not merely the personal interests of the trustee – require either assertion or defense.
  • Att’y Gen. Op. No. H-544 (1975).  County was authorized to pay or ratify expenses, including attorney’s fees, growing out of a district judge’s court of inquiry (and subsequent appeal) “if it determines that it is in the interest of the county to do so.”
  • Att’y Gen. Op. no. H-887 (1976).  A general law city may expend funds for the defense of elected city officials and employees sued both in their individual and official capacities, including (1) a situation in which residents of an area recently annexed sued the mayor and city council seeking injunctive and declaratory relief and (2) a suit filed in federal court by a local businessman against a police officer and three city council members alleging constitutional and tort claims.  The defendants in the second situation retained a private attorney employed pursuant to a city council resolution.
  • Att’y Gen. Op. No. H-1313 (1978).  A school district has the authority to assist teachers called before the Professional Practices Commission as long as the governing body believes in good faith that vital public interests are at issue.
  • Att’y Gen. Ltr. Op. No. 89-012 (1989).  A county may pay private attorney’s fees incurred in connection with grand jury investigations of county commissioners, if a bona fide public interest will be protected by such payments.
  • Att’y Gen. Op. No. 97-065 (1997).  A county commissioner’s court could employ an attorney to defend a sheriff in a criminal prosecution pursuant to common law or section 157.901 of the Local Government Code, if the legitimate interests of the county, not just the personal interest of the sheriff is at stake.

In general, the litigation costs for defending an indemnified claim may be recovered either upon a right of indemnity implied by law or arising under the contract, because otherwise an indemnitee would not be fully protected and saved harmless against claims covered by the indemnity. [40]  The common law right of indemnity exists in the case of certain relationships, as when liability is purely vicarious. [41]

Based on the body of law, as outlined in the various Attorneys General Opinions dating from the 1970s, Cook is entitled to reimbursement of his reasonable attorney’s fees in this instance.  The Litigation involved more than merely a private interest of  Cook and, in fact, involved questions of significant public importance. 

The City of El Paso also has an interest in preserving its citizens’ right to the services of their duly elected mayor.  But for  Cook having filed the Litigation, the citizens of El Paso very well may  have been deprived of Cook’s services and those of two other council representatives, thereby disenfranchising those voters who elected Cook, Byrd and Ortega to office. [42]

The City of El Paso clearly has a financial stake in ensuring that the legislative and election processes proceed legally.  The evidence was undisputed that the costs to taxpayers of a special recall election was substantial.  On January 31, 3012, the City Council authorized the expenditure of up to $800,000.  In the event that a recall election was successful, there would have to follow a special election to fill any resulting vacancy would have had to have been held within 120 days. [43]  Because of the timing of a special vacancy election, it could not have been held during the delayed primary, nor could it have been held in the November, 2012 general election.  That would of course have necessitated a separate special election.

Further, the City has important interests in ensuring that duly elected representatives are not subjected to illegal recall election efforts, which would likely have a chilling effect on the ability of such officials to exercise their judgment in enacting legislation and governance.

Finally, the City of El Paso has an interest in sound city management, the encouragement of political discourse and the finality in decision making, all of which are purposes served by the Litigation.  The practical effect of a failure to reimburse Cook’s attorney’s fees could be to discourage elected officials from making the often difficult governance decisions they are charged with making so as not provoke the use of a recall election and, therefore, pave the way for the use of recall elections as a political tool.

Cook was duly elected to make difficult decisions, and specifically empowered and charged by City Charter to cast tie-beaking votes.  Cook, Byrd and Ortega were likewise was duty-bound to “preserve, protect, and defend” the law to the best of their ability. 

D. Elected Officials Have a Right to Be Free From Vexatious Lawsuits.

Some jurisdictions recognize the specific right of elected officials to be free from the harassment of recall elections grounded on frivolous charges or mere insinuations.  See, In re Recall of Ackerson, 143 Wn.2d 366, 371 (Wash. 2001) (citing Chandler v. Otto, 103 Wn.2d 268, 274 (Wash. 1984) (recognizing penalties for recall elections brought with the aim of purely political purposes).

Although Texas Law does not specifically recognize the right to be free from harassment of recall elections, either by statute or common law, the Office of the Attorney General of Texas acknowledges a governmental body’s interest in protecting its officers and employees from vexatious lawsuits.  Such an interest may be sufficiently public to warrant paying employees’ attorney fees:

We suppose that it is not unknown for suits, on some occasions, merely to be vexatious, and perhaps even wholly mischievious [sic]. The suits are initiated by persons whose judgment and motive are sometimes unfathomable. The purely private decision to sue a public servant is not subject to the checks-and-balances so much a part of the nature and functioning of a political entity in its day-to-day operations. Public servants subject to suits by private parties for official acts are apt to be distracted from their duties by the litigation, and concommitani [sic] worries about meeting the costs of a legal defense. Fear of boundless litigation, especially if it proves to be frivolous after a lengthy and expensive process, may make public servants timid in the discharge of their duties.

Attorney General Opinion JM-755 (1987) at 5.

Although Tom Brown Ministries and the other Defendants did not file the suit, their illegal recall campaign made a suit to judicially prevent an illegal election inevitable and necessary.

III. MANY GROUNDS EXIST TO REQUIRE INDEMNIFICATION/REIMBURSEMENT.

The City of El Paso has strong constitutional, statutory and common law bases for authorizing the reimbursement of  Cook’s attorney’s fees, costs and expenses.  Had the November 2010 ballot measure not been submitted to the voters as an illegal referendum, the parade of horribles would not have occurred, and Cook would not now be placed in the uncomfortable position of asking the City he has long served to cover the costs he should not have been required to bear alone.

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