Minutes 02/12/1974 - Laserfiche WebLink

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220 February 12, 1974 74-17 - The following report from the City Attorney was read: "Re: Payment of Counsel Fees for Reinstated Policemen At your regular meeting of January 8, 1974, you referred the following proposition to me for review as to the legality thereof: That the Council entertain claims for counsel's fees incurred by policemen of the Portsmouth Police Department, and a former policeman with Fire Department, which fees were related to their jobs and who have been acquitted of the charges and returned to their jobs. That such claims for fees be examined by the City Attorney's office as to the legitimacy of the fees charged towards the end that the Public Treasury shall no~ be obligated in any case for excessive fees.' In regard thereto it is an uncontrovertible tenet of law throughout the United States that a municipality may only expend public funds for public and corporate purposes unless otherwise authorized by the state legislature. Even in that, the slate legislatur is severely restricted in its ability to authorize statutorily local expenditures of fund for matters other than public purposes. The constitution and laws of the Commonwealth of Virginia do not expressly permit any deviation from this general tenet and, in several instances, they expressly or impliedly forbid the appropriation of public revenues for private uses. The theory underlying the principle of law is obvious. To allow a muni- cipal taxing authority to collect funds from it citizenry for private use would be a form of confiscation of property totally repugnant to our democratic form of government. Therefore, the issue presented by the above proposal is whether or not such reimburse- ment would be a public purpose for which public revenues may be expended. As a general proposition, when a municipal employee in good faith incurs a loss in the discharge of a duty imposed or authorized by law, the municipal corporation has the power to appropriate funds to reimburse him. And this it may do, although the officer or employee was careless, negligent or exceeded his legal rights or authority. Thus, the city presently pays for and is legally authorized to purchase professional and automobile liability protection for its employees who may act improperly or carelessly in the good faith performance of their legal duties. Therefore, indemnification, whether prospective ly or retroactively, is a public purpse for which funds may be legally expended if the acts as delineated b thevariou indictments meet the following three-oart test: 1. The officer or employee must have been acting in a matter in which the corporation had a legitimate role or function. 2. He must have been acting in the discharge of a duty imposed or authorized by law. 3. He must have acted in gogd faith. In applying the above test to those indiztments which come within the standards of the reimbursement proposition, it should first be noted that all such acts involve wilfull misconduct and criminal intent. Bribery, larceny, obstruction of justice, con- spiracy and malfeasance incorporate such elements of criminality. Upon examination it is apparent that acts of wilfull criminality do not meet the test in any respect. Bribery could not be determined to be within the legitimate function of the city government or it employees. Larceny'~ could not be a legally authorized duty. And all such acts as charge~ are the embodiment of bad faith. In fact, it can be said that all acts as outlined by such indictments are by definition private conduct and not, in any manner, official in character. This being the case, they cannot be legally indemnified by public appropri- ation. There is, however, one other consideration which should be examined. The question, simply stated is: What recourse is there available to one unjustly accused of criminal conduct? I have assumed for purposes of this entire discussion that acquittal equals innocence in fact. The indirect answer is that an individual, public official or private citizen, may not look to the government for the costs of defense against junjust criminal allegations. He must finance his defense otherwise. The criminal process has built in protective institutions funded by public revenues. One such is the grand jury which the council requested be specially impanelled. Even if these institutions break down or operate ~properly (which is not necessarily implied by acquittal), the law comprehends n~ further recourse to the public treasury. It is settled law that in the instance of un- just, incorrect or unfounded accusation the innocent individual, be he legislator, city official, police officer or private citizen, must 'foot the bill' In conclusion, it is my opinion that the expenditure of city funds in the manner proposed would be illegal and unconstitutional under the law of the Commonwealth of Virginia. Motion of Mr. Johnson and seconded by Mr. Smith that-the Council entertain claims for counsel's fees incurred by policemen of the Portsmouth Police Department, and a forme' policeman with Fire Department, which fees were related to their jobs and who have been acquitted of the charges and returned to their jobs; that such ~claims for fees be examine~ by the City Attorney's office as to the legitmacy of the fees charge towards the end that the Public Treasury shall not be obligated in any case for excessmve fees.