GOVERNMENT LAWYER’S REPRESENTATION OF GOVERNMENT EMPLOYEES Craig E. Leen City Attorney City of Coral Gables *** With special thanks to Yaneris Figueroa, Assistant City Attorney for the City of Coral Gables, for her assistance with this presentation***

Legal Authority to Represent Government Employees a) State law authorizes representation of government employees— Fla. Stat. Sec i Defense of civil actions against public officers, employees, or agents. —Any agency of the state, or any county, municipality, or political subdivision of the state, is authorized to provide an attorney to defend any civil action arising from a complaint for damages or injury suffered as a result of any act or omission of action of any of its officers, employees, or agents for an act or omission arising out of and in the scope of his or her employment or function, unless, in the case of a tort action, the officer, employee, or agent acted in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.

Legal Authority to Represent Government Employees b) Local regulations may also authorize representation— City of Coral Gables Municipal Code Sections and 2-201(e). i —Indemnification of public officers, board members and employees – (a) The city shall protect and indemnify the city officials listed [herein] from personal liability to the fullest extent authorized by F.S. §§ and ii City attorney and legal department. (e)(5) To represent or provide for the representation of city officers and employees where required by law or where otherwise appropriate, and where such officers and employees are sued based on actions taken in their official capacities. This authority does not limit any right to indemnification as established elsewhere in the City Code.

Decision to Represent Government Employees a) Government attorney must determine whether the government employee acted with bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. i. If the answer is yes, then the government attorney cannot represent. b) HOWEVER, the 3 rd DCA ruled that the government had the discretion when deciding if the employee acted with bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. i. Nuzum v. Valdes, 407 So. 2d 277 (Fla. 3rd DCA 1981)

Why Should the Government Lawyer Represent the Government Employee? a) Allows government employees to act without being chilled; b) Public Service; c) Employees acting on behalf of the government; d) Government attorneys may have more knowledge of and experience with governmental immunities, which will assist in representation.

What About Conflicts? a) Consult Bar Rule regarding representation and conflicts of interest. b) In situations where there are multiple defendants, provide an “explanation of the implications of the common representation and the advantages and risks involved,” consistent with Rule 4-1.7(c). c) The government attorney may provide representation to both the government and the employee when there is no conflict. A representation letter should be signed with the employee (the employee should be given an opportunity to review and discuss with personal counsel). d) If there is a potential conflict or a waivable conflict, a conflict letter should be required. The employee should be given the opportunity to review and discuss with personal counsel. It may be appropriate and helpful for there to be a separate, monitoring attorney who meets with the employee to review any conflict issues and advise as to whether the conflict waiver should be signed and the government lawyer be counsel. e) Even if there is a conflict preventing representation by the government attorney, the government may still reimburse or fund a conflict counsel who will represent the employee. The only exception would be if there has been a determination that the employee acted with bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.

Government Lawyer Obligations a) You must represent the government employee as you would represent the government, i.e. zealously. b) Public Records i. Government documents may be subject to disclosure, subject to exemptions, under the public records law ii. Sending documents to your client may trigger public records laws.

Government as a Defendant versus the Individual as a Defendant a) Immunities available for individual defendant: qualified; official; and absolute. b) Immunity available for the government: sovereign immunity.  If applicable, these immunities should be raised at the initial stages of the litigation, such as through a motion to dismiss, motion for judgment on the pleadings, and/or motion for summary judgment.  If the motion Is denied in state court, the government attorney should consider an interlocutory appeal under Florida Rules of Appellate Procedure 9.130(C)(vii), (x), and (xi):  “Appeals to the district courts of appeal of non-final orders are limited to those that… determine …that, as a matter of law, a party is not entitled to absolute or qualified immunity in a civil rights claim arising under federal law; that, as a matter of law, a party is not entitled to immunity under section (9), Florida Statutes; or that, as a matter of law, a party is not entitled to sovereign immunity.”

Interlocutory Appeals and Appellate Attorneys’ Fees  If the motion is denied in federal court, the government attorney should determine whether the collateral order doctrine would permit an interlocutory appeal, which is generally true for orders denying immunities from suit as a matter of law.  Remember: If you are representing a government employee who has a right to file an interlocutory appeal, you must consider it in the employee’s best interests, and confer with the employee regarding it.  Remember to file motions for appellate attorneys’ fees as well. In state court, be mindful of the due date for motions for appellate attorneys’ fees, which is at the time the reply brief is due. See Fla. R. App. P (b). In the Eleventh Circuit, the due date is 14 days after the time for filing a petition for rehearing or rehearing en banc expires, or 14 days after such petition is determined, whichever is later. See 11th Cir. R. 39-2(a)

Judgment i If a judgment is entered against an individual employee, the government has the option to pay the judgment AS LONG AS there was no finding of malice, bad faith, or intentional violations of civil rights in the judgment