§ 2-6-129. Reimbursement of reasonable attorney fees to a public servant.*

(a)

In accordance with Michigan common law and within the strictures of subsections (b), (c) and (d) of this section, the board of ethics shall reimburse a public servant from the city's general fund for reasonable attorney fees which are incurred in the defense of an investigation conducted against him or her under section 2-6-121 of this Code where the board determines that, based upon all factual findings from the hearing, the public servant; 1) acted in good faith performance of his or her duties, and 2) did not violate this article.

(b)

The maximum reimbursement for such attorney fees shall not be greater than one hundred fifty (150) percent of the hourly rate that is established, pursuant to 18 U.S.C. § 3006a(d), for the payment of appointed counsel for matters arising in the United States District Court for the Eastern District of Michigan.

(c)

When determining the hourly rate of attorney fees to be reimbursed to a public servant under subsection (a) of this section, the board shall consider the following factors: 1) the professional standing and experience of the attorney; 2) the skill, time, and labor involved in defending the ethics notice of charges; and 3) the complexity of the notice of charges.

(d)

Where the board of ethics determines that a public servant is entitled to reimbursement of attorney fees under Subsection (a) of this section, the administrative rules that are promulgated pursuant to section 2-6-91 of this Code shall control the procedure for submission and review of relevant documentation.

(Ord. No. 43-06, § 1, 11-17-06; Ord. No. 18-12, § 1, 7-31-12)

*Commentary— In spite of the salutary objectives of the article, a board member may attempt to misuse it by making unjustified, false or frivolous charges of violation of the article by public servants. A public servant may expend substantial time and monetary resources in defending against a notice of charges, including attorney fees. This expenditure of resources may be compounded where a public servant is the unwitting target of, and must defend against, more than one baseless investigation. In recognition of this potential, this provision requires that the board of ethics grant an application for reimbursement of reasonable attorney fees incurred for the defense of a notice of charges where the board determines that the public servant acted in good faith in the performance of his or her duties and did not violate the article.

The authorization for the use of the city's general fund for this purpose is rooted in Michigan common law which recognizes the discretionary power of a municipality to appropriate funds for the necessary expenses incurred by a public servant in defending against notices of charges arising out of the good faith performance of official duties. Messmore v Kracht, 172 Mich 120; 137 NW 549 (1912). See also, City of Warren v Dannis, 136 Mich App 651; 357 NW 2d 731 (1984); 1976 OAG, No 4947, pp 349-350 (March 24, 1976) (concluding in favor of city reimbursing a public official for attorney fees incurred in defending against misconduct charges where official acted in good faith in discharging official duties); accord, Ellison v Reid, 397 So 2d 352 (Fla App Div 1 1981) (affirming use of public funds to pay legal expenses of municipal official defending against claim of ethical misconduct).

The formula for attorney fee awards is adapted from the national rate which is used by the federal district courts to pay appointed counsel in such courts. The discretion of the board in determining the amount of attorney fees to be reimbursed must be exercised reasonably, according to the criteria set forth in subsection (c) of this section.

As indicated above, the reimbursement of attorney fees in defending against a claim of ethical misconduct is limited under Michigan law to public servants. As such, contractors and vendors are precluded from receiving reimbursement of attorney fees in defending against a claim of ethical misconduct.