Bowens v. City of Pontiac , 165 Mich. App. 416 ( 1988 )

165 Mich. App. 416 (1988) 419 N.W.2d 24

BOWENS
v.
CITY OF PONTIAC

Docket No. 96213.

Michigan Court of Appeals.

Decided January 4, 1988.

Law Firm of Hatchett, De Walt, Hatchett & Hall (by Marvin R. Smith), for plaintiff.

Sullivan, Ward, Bone, Tyler, Fiott & Asher, P.C. (by Michael J. Walter and Ronald A. Weglarz), for defendant.

Before: D.F. WALSH, P.J., and SHEPHERD and A.T. DAVIS,^[*] JJ.

D.F. WALSH, P.J.

Defendant City of Pontiac appeals from the order of the Oakland Circuit Court directing defendant to pay $50,000 to plaintiff Robert Bowens. The judgment represents the amount of attorney fees incurred by plaintiff in his successful defense against a state charge of conspiracy to violate gambling laws and federal charges of conspiracy to conduct an illegal gambling operation and to obstruct state law enforcement. At all relevant times plaintiff was an elected city commissioner representing district one in the City of Pontiac. On appeal, defendant claims that the court erred in entering judgment in favor of plaintiff. We disagree.

In Messmore v Kracht, 172 Mich 120, 122; 137 NW 549 (1912), the Supreme Court cited the following rule with approval:

"It is within the discretionary power of a municipality to indemnify one of its officers against liability incurred by reason of any act done by him while in the bona fide discharge of his official duties, and the municipality has the right to employ counsel to defend the officer, or to appropriate funds for the necessary expenses incurred by him in such defense, or pay a judgment rendered against him." 28 Cyc p 454.

The Supreme Court in Messmore found that it was within the discretion of the county board of supervisors to reimburse a deputy sheriff for legal expenses incurred by him in successfully defending himself against claims of malicious prosecution and abuse of process, said claims having arisen out of actions taken by the sheriff in the performance of his duties. In Sonnenberg v Farmington Twp, 39 Mich App 446; 197 NW2d 853 (1972), this Court extended the Messmore ruling to reimbursement for attorney fees sustained in the successful defense of criminal charges arising out of and in the course of municipal employment. 39 Mich App 449.

In Exeter Twp Clerk v Exeter Twp Bd, 108 Mich App 262; 310 NW2d 357 (1981), this Court, citing Messmore, discussed the discretionary nature of a municipality's decision concerning reimbursement of an official's legal expenses. 108 Mich App 268-269. The Court stated:

Where it is factually demonstrated that pressing necessity or emergency conditions warrant a municipal official in employing legal counsel in a matter of official, public concern and legal services are provided without consent of the governing body, the courts may hold a municipal corporation liable for such legal services.

* * *

While a municipal corporation clearly has the discretion to determine whether an official may be indemnified for legal expenses incurred in the faithful discharge of his or her duties, it may constitute an abuse of discretion, as in this case, to refuse to provide legal representation or to indemnify the official for legal expenses incurred where pressing necessity or emergency conditions require legal representation. [108 Mich App 269-270, 272.]

See also City of Warren v Dannis, 136 Mich App 651, 659; 357 NW2d 731 (1984), lv den 422 Mich 932 (1985), where this Court observed:

On the issue of the defendant's right to reimbursement of attorney fees, our appellate courts have long tried to consider the need for public officials to reasonably exercise their discretion in what they in good faith believe is the exercise of the powers and responsibilities of their office. Sometimes this requires legal advice and assistance in this modern world of ours so full of litigation. The courts have likewise been concerned with officials who obstinately in bad faith and without good reason set themselves contrary to and above the law and then require public funds for their defense. There must be a fine balance line between these positions.

In this case, the trial judge found that, as a city commissioner, plaintiff was obligated to listen to constituents' complaints and to do what he legally could to preserve law and order. The judge further found that the mayor had encouraged plaintiff to learn more about the problem of violence connected with the illegal numbers racket being operated in plaintiff's district. Given the "caliber" of plaintiff's district, plaintiff's sincerity in wanting to avoid a gang war, and the mayor's encouragement, the judge found that plaintiff acted reasonably, in good faith and for a public purpose in meeting with Michael Ferrilli and Big John Andrews concerning the numbers racket. It was that meeting with Ferrilli, who was later revealed to be an undercover police agent, which gave rise to the two criminal proceedings against plaintiff. The trial judge also found that plaintiff had been faced with an emergency in immediately requiring the services of a skilled criminal attorney. Finally, the judge found that there was a public benefit in plaintiff's successful defense against the criminal charges. The judge thus concluded that defendant abused its discretion in failing to pay plaintiff's attorney fees.

We are persuaded of no clear error in the trial judge's findings of fact. MCR 2.613(C). Based on those findings, and on the authority cited supra, we find no error in the judge's conclusion that defendant abused its discretion.

Affirmed.

A.T. DAVIS, J., concurred.

SHEPHERD, J. (concurring).

I concur in the result but write separately to emphasize that this holding must be limited to circumstances where the public official was engaged in activities specifically relating to his or her public duties. In situations where the public official is charged with a criminal offense arising out of the exercise of such public duties it would only be an abuse of discretion to refuse to pay attorney fees where the criminal charges are subsequently determined to be without foundation. In this case it would not have been within the normal duties of a city commissioner to engage in law enforcement activities. However, he was encouraged to do so by the mayor, who does have a law enforcement function. Therefore, when he met with the individuals named in the majority opinion he was performing duties that were appropriate to his office. When at least one of those individuals falsely accused him of participating in a criminal conspiracy, he was faced with an emergency and had to defend himself and I agree that it was an abuse of discretion for the city to fail to pay his attorney fees once it was finally determined that the charges were false.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.