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Resolution 1995-632 .MV rrn.. ,if,' RESOLUTION NO. 95- 632 A RESOLUTIOX SETTING ~ORTH THB POLICY OF THB SO~ OF COUNTY COKKISSIOHERS WITH REGARD TO PROVIDING A LEGAL DUDSB AND PAYING LEGAL BXPENSES O~ COtmTY COKMISSIONERS, COUNTY STAF~ AND COUNTY ADVISORY SOARD MEMBERS. WHEREAS, the Board of county Commissioners and the Collier County management and legal staff are constantly presented with the necessity for making decisions reqardinq all phases of County policy, manaqement and legal counsel, respectively; and WHEREAS, local governments and their employees have recently becom~ subject to increasinq numbers of lawsuits based upon state and federal laws; and WHEREAS, it is essential to the effective operation of County qover~!nt that policy manaqement and legal decisions be made competently, in the public interest, and with the threat of personal liability ~or board and staf ~ members for makinq said decisions being mdintained at a min.:.mum so as to avoid the "Chilling effect' on the proper and diliqent performance of public duties recognized by the Florida Supreme Court in Thornber v. City of Fort Walton Beach, ;68 So.2d. 914 (1990); and WHEREAS, Florida statut.ry and case law, as well as Attorney General opinions (hel -;after referred to as "AGO"), set forth the requirements and dis;~retion which are afforded to the local qoverninq body to formulate a policy reqardinq the provision of counsel and payment of leqal expell 5es for Board members, County staff and [dvisory board mellll,ers who are involved in litigation arisin~ Ol:.t of or in connE .:tion with the performance of official dutief and while servinq .~ valid public purpose; and WHEREAS, Collier county insurance policies currently include County employees as wp.ll as Board members and members of the Administrator's and Co',mty Attorney's staff within the scope of coveraqe, provided that said persons are actinq within the scope of their employmen':; and do not act :::riminally or fraudulently; and -1- WHEREAS, the Board of County Commissioners (hereafter also referred to as "Board") desires to hereby set forth and formalize its policy with regard to the provision of leqal counsel and the payment of legal expenses incurred by County Commissioners and administrative and leqal staff so as to promote competent decisions and conduct in the public interest while reducinq the threat, intimidation and chillinq effect on performance of official duties created by potential personal liability for County Commissioners and County staff members while actinq in the scope of their official duties and while servinq a valid public purpose. WHEREAS, the various advisory boards, quasi-judicial boards and r~gulatory board; (hereafter also collectively referred to as "advisory boa:-d (s)") formed by the Board of County Commissioners, and the lembers thereof who are appointed by the Board of County CQrnmissoners, serve a cri '::ical function with reqard to the operation of Collier County Government; and WHEREAS, the members of such boards serve on a volunteer basis without compensation for the time spent in performinq their duties and functions; an WHEREAS, said boards and oard members are raqarded by the Board of County Commissioners as beinq within the umbrella of legal protection afforded to the Board of County Commissioners and other Collier County employees; and WHEREAS, the Board hereby desires to s..'t forth and formalize its policy with rr lard to the provhion of leqal counsel and the payment of lee 11 expenses incurrl:i by advisory board members so as to promotl competent decisions and conduct in the public interest while reducinq the threat, intimidation and chillinq effect on performance of official d~lties created by potential l;ersonal liabill ty for advisory board members while actinq in the scope of their official duties and while servinq a valid public purpose. NOW THEREFORE, BE IT RESOLVED BY THE BOAHD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, that: -2- Mnv nrnw~11? "n" ..~,... 1. Definition of "Count.y persones)'" As used in this Resolution, the term "County person(s)" shall mean and include the members of the Board of County Commissioners, the County Administrator and his staff, the County Attorney and his staff, all employees of the Board of county Commissioners as well as the Collier County Airport Authority Director and his staff, the Director and staff of any other County-created authority, the officers and staff of any dependent or other special district for which the Collier County Board of County Commissioners is the governing body or ex-officio the governing body thereof, and any person appointed by the Board of County Commissioners to a Collier County Advisory Board, quasi-jUdicial board or regulatory board formed by the Board of County CommisBioners of colli(r County, Florida. 2. Pursuant to SectiOI 111.07, Florida Statutes, and Thornber v. Citv of Fort Wa ton Beacll, 568 Sc .2d 914 (Fla. 1990), the Board hereby resolves to provide leqal representation to County persons in oivil aotions and in oivil riqhts action. subject to the limitations set fOlCh herein. a. Legal represenl ltion shall be pro'Jlded in civil actions and in ;ivil rights lawsuit:s only if the litigation inv lving the County person to be represented arises out of or in connection with the performance of official dut .es and while said County person was servinq a valid pUblic purpose. No re' -:-esentation shall l.e provided in tort actions f the County pelJOn acted or failed to act in bad faith, w~th malicious purpose, or in a manner eXhibiting wanton and lillful disregard of human right:l, safety or aroperty. No) epresentation shall be provided to any County p!rson in a civil action or civil rights action wilere said County pe,:"son acted or failed to act with intent te, harm. No representation shall be provided in any case -)- """r, . . ,. where the County person has willfully failed to follow the legal advice furnished by the Office of the County Attorney, unless the Board of County Commissioners specifically finds, at a public meeting, that said failure to follow legal advice was for reason(s) within the County person's scope of employment and served a valid public purpose. b. Collier County shall at all times have the discretion to determine whether to directly represent such individual through the County Attorney's office or to select: counsel to represent said ~ounty person in th~ civil action or civil righ.s action. If a :ounty person chooses to obti in private legal clunsel without prior authoriz~tion from Collie)' County, all fees and/or co:.ts incurred by such person shall be the sole responsibility of said person and Collier county shall accept no responsibili ty for payment of legal fees and/o~ ~~sts. c. Any legal fee:' and/or costs prl:perly payable under this Pol; :y must be reasonable in amount. d. Pursuant to S~ction 111.07, Florida statutes, any attorney's fees and/or c~sts paid or incurred by the county for any C01.'llty person who is found to b€ personally liable by virtue of Acting outside tLe scope of empl'.'yment, in bad faith, with mr .icious purpose, o~- in a manner exhibiting wanton and willful disregard of human riqhts, safety or property, may ~, recovered by the County in a civil action againllt such County person. e. Notwithstanding anything else stated in this section or this ReSOlution, the Bo; Ird shall have the sole and absolute discretio'1 allowed by '.4- - 5- BOOK HeO pm 115 Section 111.07, Florida Statutes, as well as by applicable case law, to not provide leqal representation and to instead reimburse any County person for reasonable attorney fees and/or costs in the event that said County person prevails in the civil or civil rights action. . 3. Pursuant to Sections 111.071 and 111.072, Florida statutes, the County shall pay for final jUdgments, settlements and/or costs involving County parsons in civil actions an4 in oivil rights actions subject to the limitations provided herein. a. Collier County shall pay final jUdgments, settlements a ,d/or costs invclvin9 County persons only w-'ere the litigatior arose out of or in connection with the perfo:1Dance by the County person of official duti~s and while serving a valid pUblic purpose. No final judgment, settlement or costs sha'.l be paid for by the County in a civil action or a civil rights action ; : the County perso~ against whom the final judgr. :nt, settlement and/or costs have been imposed h 1S acted or failed to act with intent to harm. The County shall not pay any final jUdgment, settlement and/or costs in tort actions where a County person has acted or ?:ailed to act .,it:h bad faith, Jl ,.lice or with wanton and wil' ful disreqard of ."luman rights, safety or propc..rty. No judgment and/or costs shall be paid in any case wher!! the County person has willfully failed to follow the leqal .Jdvice furnishE'i by the Office of the County Attorney, unless the Board of County Commissioners s?ecifically finds, at a public meetinq, that said failure to follow leqal -6- 8001C 000 PA~~ 116 advice was for reasons within the County person's scope of employment and served a valid public purpose. b. Any final jUdgments, settlements and/or costs paid or incurred by the County shall be in strict adherence with the sovereign immunity recovery limits set forth in Section 768.28, Florida statutes. c. If the County person has had private legal representation in the case, contrary to the provisions of Section (2) (b) of this POlicy, any final judgment, settlement and/or costs imposed shall be the sole responsibility of said person and Collier County shall accept no responsibility for payment 01 the final judgment, settJ ~ment and/or costs. d. Pursuant to Ser.tion 111.071(4), t:ds section is D2t intended ~o be a waiver of sovereign immunity or a waiver of any .-,ther defense or immunity to such lawsuits. 4. In cases where a C unty person is fO:':"JIlally charqad with a criminal violat.ion, th: County shall pay ',:',he laqa1 f.as and/or costs lncurred by sa j County person only under the followinq circullStances: a. The charges against the County pe 'son arose out of or in connection with the }lerformance of official dutie~ and while serving .l valid pUblic purpose. b. The County pe son has been aCCIl'itted or the charges dismissed. Lomelo v. cit~ Sunrise, 423 So. 2d. 974 (4th DCA 1982), I;>et. for rev. dismissed at 43 I. so.2d. 988 (Fla. 1983), and AGO 89-33. c. The legal fe 1S and/or costs charged are reasonable in amount. InnV' nnn~1 .11" d. The County person has first notified the County administration and legal staff of the pendency of the charges and has permitted the County the opportuni ty to either directly provide counsel or to allow said county person to choose his/her own counsel. e. The charges have not resulted from the willful failure of the County person to follow the legal advice furnished by the Office of the county Attorney, unless the Board of County Commissioners specifically finds, at a public meeting, that said failure to follow legal advice was for reasons within the county person's scope )f employment and r~erved a valid public purpose. f. The legal feeslnd/or costs incurrr!d by a County person during the investigato~r, pre-Charge stages of a criminal case shall be paid by the County only for proceedinqs involving potential criminal liability for the Coun:.y person and where the aller ations are ultimatoly determined to be unfounde. and to have arise:) from conduct related to thE performance of official duties and while serving a valid public purpose. AGO 94-11. The provisions of Subsect.lons 4b, c, d and e of this R9solution shall als~) govern these cases. g. In the event hat the County pe~son has been provided legal ~epresentation by the County and the County person is found guilty of a criminal charge, the County may recover flom the County person in a ci Iii! action all leqal fees and/or costs pa id or Llcurred by the County. 5. The Cr.)unty shall pay legal fees and/or floats incurred by County persons in C:-lses involvinq formal r..thica charqes -7- n,.,,, ",,... subject to the limitations provided herein: a. The ethics charges arose from conduct related to the performance of official duties and while serving a valid public purpose. Ellison v.Reid, 397 So. 2d. 352 (1st DCA 1981) and AGO's 85-51 and 90-74. b. The County person has prevailed and successfully defended against the ethics charges. c. The legal fees and/or costs charged are reasonable in amount. d. The County person has first notified the County administration and legal staff of the pendency of the charges and has permitted ~he County the opportunity to either directly p:'ovide counsel or to allow sajj County person to::hoose his/her own counsel. e. The charges have not resulted from the willful failure of the County person to follow the leqal advice furnished by the Office :)f the County Attorney, un ass the Board of County Commissionerspecifically finds, at a public meeting, that said failure to follow leqal advice was for reasons within the County person's scope of employment and ~erved a valid public purpose. f. The legal fees ,nd/or costs incurr.!d by a County person during the investiqator/, pre-charge stages of an e hics complaint shall be paid by the County only for proceedings involvinq potential civil and/or criminal li,\bility and/or ethics sanction: for the County person and where the allegations are ultimately determined to be unfounded and to have arisen from conduct related to the performance of of ticial duties and while serving a valid pUblic purpose. AGO '8- O('\n " I'" 94-11. The provisions of Subsections 5b, c, d and e of this Resolution shall also govern these cases. q. In the event that the County person has been provided legal representation by the County and the County person is found by the Florida Ethics Commission or other appropriate tribunal having jurisdiction over the case to have committed ethical violations, the County may recover from the County person in a civil action all leqal fees and/or costs paid or incurred by the County. h. Nothinq in thi 1 section shall be construed to preclude the 'ounty Attorney fr ,m requesting formal or infol nal ethics opinion!, on behalf of one or more com~issioners. 6. The County shall pay legal fees and/or ,;:osts incurred by County persons in cases involving non-county administrative and/or regulatory proceedings and/or formal char:jes subject to the limitations provided hereh: a. The proceedin~ ~ and/or charges arose from conduct relatec to the performance of official .juties and whilu servinq a valid public pUrpose. b. The County person has prevailed an~ successfully defended against the proceedinqs a.'.d/or charqes. c. The legal fel:s and/or costs charged are I."easonable in 2. ount. d. The County pen n has first notifi'!ld the County Administration and legal staff of the pendency I')f the proceedings and/or charrJes and has r~rmitted the County the opportunity to directly provide counselor to allow said County person to choose his/her own counsel. e. The charges and/or proceedinqs have not resulted from the willful failure of the COU'lty person to -0}- Ie-. tollow the legal advice turnished by the Office ot the County Attorney, unless the Board of County Commissioners specifically finds, at a pUblic meeting, that said failure to follow leqal advice was for reasons within the County person's scope of employment and served a valid public purpose. f. The legal fees and/or costs incurred by the County person during the pendency ot the proceedings and/or the investiqatory, pre-charqe stages of an administrative or regulatory case shall be paid bv the County only for proceedings and/or charges Lnvolvinq potential civil and/or criminal Hat llity and/or a.lministrative/ regulatory sanctions for the Cour..(:y person and where the alle~ptions are ultimatr'ly determined to be unfounded and to have risen from conduct related to the performance of o:-ficial duties and while serving a valid public purpose. AGO 94-11. The pr. visions of Subsections 6b, c, d and e of this t solution shall also govern these '.:ases. g. In the event that the County person has been provided legal representation by ':.l1e County and the County perS-ln is found, by an .ldministrative ~'r regulatory a1ency or othe; appropriate tribunal havinc jurisdiction over the case, to have civil or cciminal liability and/or to have violated administrative or regulatc)ry rules, the r:ounty may recover from the Count~. person in a ~ivil action all legal fees and/or costs paid or incurred by the County. 7. The Cr~nty shall pay legal fees an4/or costs incurre4 by in4ividual members of the Board of county COmR1is.ioners for institutinq, as opposed to defendinq, litiqation only where all 8. All preliminary decisions ac!min:., stering and of the followinq circumstances are present: a. The litigation arises from or in connection with the Board members performance of official duties and the litigation serves a valid public purpose. b. This section shall apply only to members of the Board of County Commissioners and not to any other "County person" defined in section 1 of this Resolution. c. The Board member must prevail in said litigation. d. The legal fees and/or costs are reasonable in amount. e. The Board membl r shall have first notified the Board of COU-lty commissioners, the County Administrator ,nd the County Attc rney prior to the commenceme t of the litigat,;on and shall have permitted the County the opportunity to either directly provide counselor to allow said commissioner to choose his/her own counsel. f. The litigation Las not resulted fr(~ the willful failure to fol.',w the leqal advic,~ furnished by the Office of :he County Attorney, unless the Board of County Commissioners specifically finds, at a public meetinq, that I ~dd failure to follow legal advice was tor reaS(lnS within the .' Commissioner's lcope of employment and served a valid public P\ 'pose. g. In the event :hat the Commissioner has been provided legal representation by the County and the Commissioner does not pre 'fail in tho litigation, thel. the County may recover from the Commissioner ir. a civil action aJ.l leqal fees nnc!/or costs pa:id or incurred by tt;e County. -11- 8001C 000 PAGE 121 9. Collier County F\:>ard of County Commissioners Resolution Nos. 85-126 and 35-178 are hereby repealed and superseded in their entirety. This Resolution adopted ifter motion, second and majority vote'favoring same. DATED':" 'Y~#$ ATTEST:' , DWIGHT 'E.:.~ROCK, Clerk , , BOARD OF COUNTY COHKISSIONERS COLLIER co . FU.,* Chairman implementinq this policy shall initially be made by the County Administrator and/or his designee and the Office of the county Attorney in cooperation and consultation with each other's respective offices. Both offices are hereby delegated the power to make any lawful and reasonable investigation and evaluation of cases arising under this policy. Said evaluation shall take into account all available relevant information in addi tion to the nature, type, number and substance of the allegations contained in any pleadings filed and/or served in any legal proceeding. All final determinations regardinq the implementation and administration of this policy shall be made only by the Board of County commissioners which is in accordance wit~ AGO's 85-51, 81-22, 90-74 and ~1-58. The Board shall also make all final determinations .egardinq the provision of a legal defense and/or payinq leqll expenses of County person~ for any type 01 legal claim or sui~ arisinq f~om a County person's performance of official duties while servinq a valid public purpose if said type of claim or suit is not specifically addressed by this Resolution. ~.~/~~c~.@(' . ., . -' . Approved as to form and legal':sufficie lcy: / At tornl' y 5373 -12- ~oov nn(, par,l ~_Z2