77 Op. Att'y Gen. 177 (1988)
 
77 OAG 177  178  179  180  181

OPINION NO. OAG 39-88,

Wisconsin Attorney General Opinions

18 August 1988

Municipalities;
Open Meeting;
Public Officials;

Sections 895.35 and 895.46, Stats., apply to
actions for open meetings law violations to
the same extent they apply to other actions
against public officers and employes, except
that public officials cannot be reimbursed
for forfeitures they are ordered to pay for
violating the open meetings law.

LAWRENCE J. HASKIN,
City Attorney City of Oak Creek

You have asked for my opinion whether a city
can pay the plaintiffs attorneys fees as part
of settlement of an action against a city
official for an open meetings law violation.

You explain that the former mayor, two
aldermen and four fire and police
commissioners from the city of Oak Creek are
defendants in an action commenced in the name
of the president of the city's police union
for alleged violations of the open meetings
law.

As part of settlement negotiations, counsel
for the union president has proposed
dismissal of the action upon payment of
attorneys fees by the defendants.

Your specific question is: after a settlement
of an open meetings law action that provides
for dismissal and for the defendants to pay
for the plaintiffs attorneys fees, can the
city reimburse the defendants for the payment
of the plaintiff's attorneys fees?

You have also asked whether the city
attorney, pursuant to section 62.115, Stats.,
can be authorized to defend the city
officials in the open meetings law action?
 

In my opinion,
the answer to both questions is yes.

The two statutes providing for reimbursement
to public officials who are defendants in
legal actions are sections 895.35 and 895.46.

Where section 895.35 applies, the designated
governmental unit has the discretion to pay
all reasonable expenses that the officer
necessarily expended.

Where section 895.46 applies, the
governmental unit has an obligation
to pay the judgment and expenses
identified in the statute.

 
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Section 895.35 provides:

Whenever in any city, town, village, school
district, vocational, technical and adult
education district or county charges of any
kind are filed or an action is brought
against any officer thereof in his official
capacity, or to subject any such officer,
whether or not he is being compensated on
a salary basis, to a personal liability
growing out of the performance of official
duties, and such charges or such action is
discontinued or dismissed or such matter is
determined favorably to such officer, or such
officer is reinstated, or in case such
officer, without fault on his part, is
subjected to a personal liability as
aforesaid, such city, town, village, school
district, vocational, technical and adult
education district or county may pay all
reasonable expenses which such officer
necessarily expended by reason thereof.

Such expenses may likewise be paid, even
though decided adversely to such officer,
where it appears from the certificate of the
trial judge that the action involved the
constitutionality of a statute, not
theretofore construed, relating to the
performance of the official duties of said
officer.

Section 895.46(1)(a) provides:

If the defendant in any action or special
proceeding is a public officer or employe and
is proceeded against in an official capacity
or is proceeded against as an individual
because of acts committed while carrying out
duties as an officer or employe and the jury
or the court finds that the defendant was
acting within the scope of employment,
the judgment as to damages and costs entered
against the officer or employe in excess of
any insurance applicable to the officer or
employe shall be paid by the state or
political subdivision of which the
defendant is an officer or employe.
Agents of any department of the state shall
be covered by this section while acting
within the scope of their agency.

Regardless of the results of the litigation
the governmental unit, if it does not provide
legal counsel to the defendant officer or
employe, shall pay reasonable attorney fees
and costs of defending the action, unless it
is found by the court or jury that the
defendant officer or employe did not act
within the scope of employment.

If the employing state agency or the attorney
general denies that the state officer,
employe or agent was doing any act growing
out of or committed in the course of the
discharge of his or her duties, the
attorney general may appear on behalf of the
state to contest that issue without waiving
the state's sovereign immunity to suit.

Failure by the officer or employe to give
notice to his or her department head of an
action or special proceeding commenced
against the defendant officer or employe as
soon as reasonably possible is a bar to
recovery by the officer or employe from the
state or political subdivision of reasonable
attorney fees and costs of defending the
action.

 
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The attorney fees and expenses shall not be
recoverable if the state or political
subdivision offers the officer or employe
legal counsel and the offer is refused
by the defendant officer or employe.

If the officer, employe or agent of the
state refuses to cooperate in the defense
of the litigation, the officer, employe
or agent is not eligible for any
indemnification or for the provision
of legal counsel by the governmental
unit under this section.

Several years ago, my predecessor concluded
that section 895.35 applied to actions for
open meetings law violations, but that
section 895.46 did not because that statute
did not apply to forfeiture actions. See 66
Op. Att'y Gen. 226, 229-30 (1977).

In light of subsequent supreme court and
court of appeals' decisions, the 1977
opinion must be withdrawn in
regard to section 895.46.

In
Crawford v. City of Ashland,
134 Wis.2d 369,
396 N.W.2d 781 (Ct.App. 1986),
the court of appeals held that section 895.46
was applicable to forfeiture actions.

The court said that the attorney general's
conclusion that the statute did not apply
to forfeiture actions was unpersuasive.

Crawford, 134 Wis.2d at 376.

However, the court said that the attorney
general was correct to the extent that
section 19.96 prohibits reimbursement to
officials because the open meetings law
statute is specific to those prosecutions.

The supreme court has repeatedly stated that
sections 895.35 and 895.46 were enacted by
the Legislature to offer the broadest
protection reasonably available
to public officials and public employes.

See

Beane v. City of Sturgeon Bay,
112 Wis.2d 609, 614, 619,
334 N.W.2d 235 (1983);

Schroeder v. Schoessow
108 Wis.2d 49, 67,
321 N.W.2d 131 (1982); and

Bablitch & Bablitch v. Lincoln County,
82 Wis.2d 574, 579,
263 N.W.2d 218 (1978).

These court decisions compel me to withdraw
part of the 1977 opinion and now conclude
that sections 895.35 and 895.46 apply to
actions for open meetings law violations to
the same extent they apply to other civil
actions against public officers and
employes, with the exception that public
officials cannot be reimbursed for the
forfeitures they are ordered to pay for
violating the open meetings law.

See sec. 19.96, Stats.

 
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Your specific question is whether the city
can reimburse the defendant officials if
they pay for the plaintiff's attorneys fees
as part of a settlement to obtain dismissal
of the open meetings law action.

Under section 895.35, the city may exercise
its discretion to pay the officials'
reasonable expenses, which includes
the officials' costs.

See Bablitch, 82 Wis.2d at 583-84.

Therefore, the city has the authority to
reimburse the officials if as part of the
settlement they pay for the plaintiff's
attorneys fees.

You also ask whether the city attorney under
section 62.115 may represent the officials
in an open meetings action.

Section 62.115 provides:

62.115(1)

The common council of any city, however
incorporated, may by ordinance or resolution
authorize the city attorney to defend actions
brought against any officer or employe of
such city or of any board or commission
thereof, growing out of any acts done in the
course of his employment, or out of any
alleged breach of his duty as such officer or
employe, excepting actions brought to
determine the right of such officer or
employe to hold or retain his office or
position, and excepting also actions brought
by such city against any officer or employe
thereof.

62.115(2)

Nothing in this section contained, nor any
action taken by any city or by any city
attorney pursuant to the provisions of this
section, shall be construed to impose any
liability, either for costs, damages or
otherwise, upon such city or city attorney.

Because I have concluded that, with the one
exception covering the reimbursement for
forfeitures, sections 895.35 and 895.46 apply
to open meetings law cases, I also conclude
that the city attorney would be able to
represent officials in open meetings law
cases to the same extent the city attorney
can represent the officials in other
forfeiture cases.

DJH:SWK

 
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