1

Memorandum

To:
Ufs:
From:
Date:
Re:

Expenditure relating to fees/legal costs for personal advice obtained on

behalf of an individual

With reference to the matter at caption:

ISSUE
Whether the Commissioner of Police has a common law right to have his legal fees paid
by the public
LAW
According to the Constitution Ch 1:01:
Section 123 [Powers of the Police Service Commission]
(8) The Police Service Commission may terminate the services of the Commissioner or
a Deputy Commissioner of Police on any of the following grounds:
(a) where the officer is absent from duty without leave for seven consecutive days,
during which he has failed to notify the Police Service Commission of the cause of
his absence, whether he holds a permanent, temporary, or contractual appointment;
(b) breach of contract, where the officer is appointed on contract;
(c) reported inefficiency based on his performance appraisal reports;
(d) on dismissal in consequence of disciplinary proceedings,
after giving him an opportunity to be heard;
(e) where the officer holds a permanent appointment
(i) on being retired on medical grounds;
(ii) on being retired in the public interest; or
(iii) on the abolition of office.

Section 123A (Powers of the Commissioner of Police)

(1) Subject to section 123(1), the Commissioner of Police shall have the complete power
to manage the Police Service and is required to ensure that the human, financial and
material resources available to the Service are used in an efficient and effective manner.
Police Service Regulations made under the Police Service Act Ch 15:01
Regulation 71 [Performance Appraisals]
(7) The officer being appraised may comment on the performance appraisal report
on any aspect of it, whether it is satisfactory or not, and shall sign it.
(8) Notwithstanding regulation 191, and for the purpose of this regulation, an
officer who is dissatisfied with his performance appraisal report is entitled to make
a written complaint directly to an officer of a rank higher than the officer in charge
of his Division or Branch.
(9) The officer who makes a complaint under subregulation (8) shall set out the
specific nature of his dissatisfaction and is entitled to be heard by the officer to
whom he has made the complaint and who shall make a final decision on the
matter.
In Finn v Virginia Retirement System1the court recognized the (legitimate public policy
basis) of a common law duty on the part of state agencies to reimburse its officials.
Maloy v Board of County Commissioners of Leon County, Florida2
In this case the issue was whether public officials have a common law right to have their
legal fees paid by the public. Here the appellant fought a complaint that alleged improper
solicitation and acceptance of gifts, misuse of his public position and improper conflict
with his county commission duties. Specifically, he was accused of soliciting and
accepting sexual favour or service from his aide, using his official position to obtain a
special privilege from his aide thereby creating conflict between his public duties and the
discharge of those duties. The Court of Appeal noted that the Supreme Court had
enunciated a common law doctrine affording public officials the right to legal
representation at taxpayers expense in defending themselves against litigation arising out
of public duties and while serving a public purpose3.
1

Record No. 990377 January 14, 2000, Supreme Court of Virginia, USA

Case No. 1D05-4445

See Thornber v City of Ft. Walton Beach 568 So. 2d914, 917 (Fla.1990), (This entitlement to
attorneys fees arises independent of statute, ordinance, or charter. Public officials were found
entitled to attorney fees under the common law for the successful defence of misconduct charges
before the Commission) and Markham v State, Dept of Revenue 298 So. 2d 210, 211 (Fla. 1st
DCA 1974), (Public officers are, of course, entitled to a defense at the expense of the public in a
law suit arising from the performance of the officers official duties and while serving a public

Thus the court applied a two-prong test: The litigation must

(a) Arise out of or in connection with the performance of their official duties and
(b) Serve a public purpose
The Court found that the behavior at the heart of the ethics complaint did not arise out of
and in the scope of Maloys employment with Leon County while in his official capacity
and while serving a public purpose. Nothing in his duties required him to become
involved in such behavior. His sexual conduct, whether harassment or consensual,
whether occurring inside or outside of the workplace, did not serve a public function or
the public interest.
Ellison v Reid4
Here it was found that If a public officer is charged with misconduct while performing
his official duties and while serving a public purpose, the public has a primary interest in
such a controversy and should pay the reasonable and necessary legal fees incurred by the
public officer in successfully defending against unfounded allegations of official
misconduct.
The complaint in Ellison alleged that Ellison, an appraiser, improperly gave examination
papers to his employees while attending a training programme sponsored by the
Department of Revenue. The Court of Appeal found that the alleged impropriety occurred
at a training seminar sponsored by the department and that attendance at such events
serves a public purpose because property appraisers improve their skills. Thus the court
held that the county property appraiser was entitled to reimbursement of legal fees
incurred in defending against the ethics complaint.
ADVICE
Though it appears that the outstanding legal fees were incurred in relation to the
Commissioner of Polices personal issue with the Police Service Commission, those fees
arose out of his employment with the State and while he served a public purpose. The
public would want to know if the Commissioner of Police is competent and his
performance appraisal would indicate this. He sought to demonstrate that his level of
competence was higher than that which his assessor put on his performance appraisal.
Furthermore, based on Regulation 71, it would appear that the signing of the
performance appraisal formed part of a police officers mandatory duties, subregulation
(7), and that officers are entitled to respond, in writing, if they do not agree with the
appraisals that they receive, subregulation (8).
purpose.) and Leon County v Stephen Dobson III No 1D05-4326 January 26,2007, Florida Court
of Appeal
4

397 So.2d 352,354 (Fla. 1st DCA 1981)

The Police Service Commission (PSC) may terminate an officers employment if he rates
poorly in his performance appraisal. This may make it appear as though the legal advice
sought by the Commissioner was related to personal and not professional issues.
However, he sought legal advice in order to complete his duties, namely
The mandatory signing of his performance appraisal
His optional response to the appraisal, and
The preparation of a response to the PSC if the PSC sought to terminate him.
In the instant case it is difficult to divorce the personal desire not to be unfairly fired from
the professional duties/responsibilities. As a result, the Commissioner appears to have
been serving a public purpose when he sought legal advice since the situation which
caused him to need legal advice arose out of or in connection with the performance of
their official duties and while he served a public purpose. Consequently, he is entitled to
have his legal fees paid by the public purse.

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