Powers v. Goodwin

324 S.E.2d 701, 174 W. Va. 287

• Court: West Virginia Supreme Court
• Decided: September 25, 1984
• Docket: 16291
• Status: Published

Opinions

MILLER, Justice:

This is a second appeal in connection with removal proceedings under W.Va. Code, 11-8-31, and W.Va.Code, 6-6-7, brought against Ed Cooke and James Armstrong, two Boone County Commissioners, who had voted to reimburse legal fees incurred by James Goodwin, the third Boone County Commissioner. In the first appeal, Powers v. Goodwin, 170 W.Va. 151, 291 S.E.2d 466 (1982), we established the law of the case and reversed the circuit court’s holding that Commissioners Cooke and Armstrong were not subject to removal. In remanding this case, we made the following observation:

“It would appear to this Court that on the facts presented to the court below in the joint motions for summary judgment that the reimbursement of Mr. Goodwin for his attorneys’ fees was probably an unauthorized expenditure since the foundation of both the criminal prosecution and petition to remove him from office was personal malfeasance entirely unrelated to the discharge of his official duties.” 170 W.Va. at 162, 291 S.E.2d at 477.

We then proceeded to establish some specific guidelines to assist the circuit court on the remand.¹ Upon remand, the circuit court² proceeded to hold additional hearings and concluded in a detailed opinion that the actions of Commissioners Cooke and Armstrong met the requirements of category two of the guidelines contained in Powers v. Goodwin, i.e., the actions were performed in good faith, but negligently. As a consequence of this finding, the court held that these two commissioners should be removed from office, but could not be held personally liable for the attorney’s fees, which amounted to $14,547.64.

It is this removal order that is being appealed. A number of errors are assigned, which may be grouped into three main categories: that the evidence was insufficient to uphold removal; that reliance on the advice of counsel was a defense to removal; and that there were a number of procedural errors.

I.

SUFFICIENCY OF THE EVIDENCE

With regard to the removal of a public official under W.Va.Code, 11-8-31,³ it does not appear that we have had occasion to specify the degree of proof necessary to warrant a removal from office. In this proceeding, removal was also sought under W.Va.Code, 6-6-7. This latter provision contains the procedural requirements for removal⁴ and we have held in Syllabus Point 9 of Evans v. Hutchinson, 158 W.Va. 359, 214 S.E.2d 453 (1975), that “[t]o warrant removal of an official pursuant to Code 1931, 6-6-7, clear and convincing evidence must be adduced to meet the statutory requirement of satisfactory proof.” See also Kemp v. Boyd, 166 W.Va. 471, 275 S.E.2d 297, 301 (1981); In the Matter of Boso, 160 W.Va. 38, 231 S.E.2d 715, 718 (1977). Because of the obvious similarity in the end result between the two removal statutes, we believe that the same eviden-tiary standard of proof should apply. Furthermore, it may often be the case, as it is here, that a proceeding will be brought under both removal statutes so that a uniform standard of proof would obviously be desirable. See Edwards v. Hylbert, 146 W.Va. 1, 118 S.E.2d 347 (1960). We, therefore, conclude that the standard of proof for removal proceedings under W.Va.Code, 11-8-31, is by clear and convincing evidence.

It should be noted that under both statutes, a court will hear the case in lieu of a jury. We have held under both statutes that a court’s findings of fact are entitled to the same weight as a jury verdict or as more fully stated in Syllabus Point 6 of Daugherty v. Ellis, 142 W.Va. 340, 97 S.E.2d 33 (1957):

“The finding of a trial court upon facts submitted to it in lieu of a jury will be given the same weight as the verdict of a jury and will not be disturbed by an appellate court unless the evidence plainly and decidedly preponderates against such finding.”

See also Edwards v. Hylbert, supra.

In the present case, the main argument over the trial judge’s findings of fact is that they are not supported by the evidence. Particular emphasis is placed on the fact that Commissioner Goodwin was not removed from office for his admitted use of the county’s telephone credit card for his personal business.⁵ However, this argument ignores the critical fact that the removal charge against Commissioner Goodwin did not involve a matter relating to his official duties as a commissioner. As we noted in our earlier opinion, the reimbursement of Commissioner Goodwin for his attorney’s fees was probably an unauthorized expenditure since the earlier proceedings which gave rise to the fees were “entirely unrelated to the discharge of his official duties.” Powers v. Goodwin, 170 W.Va. at 162, 291 S.E.2d at 477. The circuit court found, and this is clearly supported by the record, that Commissioners Cooke and Armstrong were aware of this fact.

Moreover, neither Commissioners Cooke nor Armstrong attempted to make any personal investigation of the fee bill nor to have some explanation from Commissioner Goodwin nor to require some itemization of the bill. It appeared that some of the fee charges were incurred well prior to the institution of the removal charges and were for matters unrelated to the removal proceeding.

In Powers v. Goodwin, we referred to the negligence standard from Lane v. Blair, 162 W.Va. 281, 250 S.E.2d 124 (1978), that placed the duty on public officials to exercise some diligence. See also Syllabus Point 2, Edwards v. Hylbert, supra. It is manifest that Commissioners Cooke and Armstrong failed to make any investigations on their own and that they simply turned the entire matter over to an assistant prosecutor with the general request that he tell them if payment was proper. They made no attempt to question or otherwise discuss the matter with him. Given this record, we uphold the trial court’s finding of negligence.

II.

RELIANCE ON ADVICE OF COUNSEL

Commissioners Cooke and Armstrong strenuously argue that any negligence on their part should be excused as a matter of law because they acted on the advice of an assistant prosecuting attorney. Both testified that once the fee bill was presented by Commissioner Goodwin, they made no independent investigation of it, but simply turned the matter over to the assistant prosecutor.

The circuit court found that at a commissioner’s meeting on June 1, 1981, Commissioner Goodwin’s bill for legal fees was taken up by Commissioners Cooke and Armstrong. Commissioner Goodwin was present at the meeting, but stepped down as commissioner to present his fee bill, which was not itemized.

Shortly prior to the presentation of the fee bill, the assistant prosecutor gave the other two commissioners a legal memorandum, which, without reciting any facts surrounding Commissioner Goodwin’s removal proceeding, indicated that payment of the fee bill would be proper. Included in the memorandum was the statement that “the general rule of law [is] that a public body may indemnify a public official, who acts in good faith, for legal expenses incurred in suits brought against him for acts committed in the discharge of his duties.”

The trial court found that neither Cooke nor Armstrong questioned the assistant prosecutor regarding his memorandum and that the fee bill showed legal fees totaling more than $10,000 that were incurred by Goodwin prior to the time that any removal proceedings had been brought. The court also found that Cooke and Armstrong made no inquiry as to what the fees were incurred for, even though they were aware that Goodwin had been involved in earlier charges not connected with the credit card removal proceeding. The court also found that at the time the bill was authorized to be paid, Cooke and Armstrong had persuaded Goodwin to agree that he would reimburse the county if it were subsequently determined that the payment was illegal. These findings are supported by the record.

We have not had occasion to discuss the question of what role the advice of counsel may have where a public official has been charged with neglect of duty. In Edwards v. Hylbert, 146 W.Va. 1, 118 S.E.2d 347 (1960), the issue was raised in a proceeding involving the removal of the mayor and certain city councilpersons, but was not discussed because the court found that they had not relied on advice of counsel.

Our earlier case of Hamrick v. McCutcheon, 101 W.Va. 485, 133 S.E. 127 (1926), involved an attempted removal of the members of a board of education. Mention was made in the opinion that the board had consulted an attorney, but no discussion of the relevant legal principles was undertaken.⁶

Reliance on advice of counsel as a defense is a subject that does not appear to have been extensively discussed by the courts.⁷ It seems clear, though, that the party asserting this defense has the burden of showing that he: (1) made a complete disclosure of the facts to his attorney; (2) requested the attorney’s advice as to the legality of the contemplated action; (3) received advice that it was legal; and (4) relied upon the advice in good faith.⁸ SEC v. Savoy Industries, Inc., 665 F.2d 1310, 1314 n.28 (D.C.Cir.1981); see SEC v. Manor Nursing Centers, Inc., 458 F.2d 1082, 1101-02 (2d Cir.1972); United States v. Custer Channel Wing Cory., 376 F.2d 675, 683 (4th Cir.), cert. denied, 389 U.S. 850, 88 S.Ct. 38, 19 L.Ed.2d 119 (1967); Hawes & Sherrard, Reliance on Advice of Counsel as a Defense in Corporate and Securities Cases, 62 Va.L.Rev. 1 (1976); Note, Advice of Counsel as a Defense, 28 Va.L.Rev. 26 (1941).

We have recognized much this same law in cases involving suits for malicious prosecution where acting on advice of counsel can be an absolute defense. In Syllabus Point 8 of Truman v. Fidelity & Casualty Company of New York, 146 W.Va. 707, 123 S.E.2d 59 (1961), we said:

“ ‘A suit, action or proceeding, prosecuted in good faith, and on advice of reputable counsel obtained after a fair and accurate disclosure to counsel of the facts on which advice is sought, may not serve as the basis of an action for malicious prosecution.’ Hunter v. Beckley Newspapers Corp., 129 W.Va. 302, Pt. 5 Syl. [40 S.E.2d 332 (1946)]; Wright v. Lantz, 133 W.Va. 786, Pt. 2 Syl. [58 S.E.2d 123 (1950)]”.

See also Hogan v. Robert H. Irwin Motors, Inc., 121 N.H. 737, 433 A.2d 1322 (1981); Pallas v. Zaharopoulos, 219 Va. 751, 250 S.E.2d 357 (1979); Restatement (Second) of Torts § 666 (1977).

However, acting under advice of counsel is not an absolute defense in other situations. In the contempt field, we have stated that it is not a defense, but may go to the mitigation issue. State ex rel. Walker v. Giardina, 170 W.Va. 483, 294 S.E.2d 900, 903 (1982); Bailey v. Bailey, 127 W.Va. 826, 829, 35 S.E.2d 81, 82-83 (1945).

Except for malicious prosecution suits, it is generally held that reliance on advice of counsel is not an absolute defense to charges that a person is acting unlawfully or negligently. This issue has been raised in suits involving violations of civil rights under 42 U.S.C.A. § 1983, which are treated as federal tort actions.⁹ Typical of most courts’ approach in this area is this statement from Crowe v. Lucas, 595 F.2d 985, 992 (5th Cir.1979): “Reliance on advice of counsel does not serve as an absolute defense to a civil rights action. Rather, it is among the calculus of facts that a jury is to consider on the issue of good faith.” See also Dellums v. Powell, 566 F.2d 167, 185 (D.C.Cir.1974), cert. denied, 438 U.S. 916, 98 S.Ct. 3146, 57 L.Ed.2d 1161 (1977); Tillman v. Wheaton-Haven Recreation Ass’n, Inc., 517 F.2d 1141, 1145-46 (4th Cir.1975).

From the foregoing law, we conclude that the circuit court acted properly in concluding that acting on advice of counsel is not a per se defense to charges that a public official has acted unlawfully.

III.

OTHER ERRORS

Complaint is made that the taxpayers on this removal case were not registered voters. However, voter registration certificates were introduced and these taxpayers testified that they were registered voters at depositions which were later made a part of the record. The fact that they did not have detailed information of the case and had not met frequently with their attorney does not create a fatal flaw in the proceedings. Cf. Surowitz v. Hilton Hotels Corp., 383 U.S. 363, 86 S.Ct. 845, 15 L.Ed.2d 807 (1966); State ex rel. Bromelow v. Daniel, 163 W.Va. 532, 258 S.E.2d 119 (1979).

"Section 1983 is derived from § 1 of the Civil Rights Act of 1871, 17 Stat 13. It was intended to create ‘a species of tort liability' in favor of persons deprived of federally secured rights. Carey v Piphus, 435 US 247, 253, [98 SCt 1042, 1047, 55 LEd2d 252, 258] (1978); Imbler v. Pachtman, 424 US 409, 417, [96 SCt 984, 988-89, 47 LEd2d 128, 136] (1976).”

Further complaint is made that the action was not timely prosecuted. Even assuming there were some legal requirement beyond Rule 41 of the West Virginia Rules of Civil Procedure, we find no basis in fact for this assertion. The challenged payment was made in June of 1981. The case had been heard on appeal in this Court prior to May 17, 1982, when our first opinion was issued. On remand, prompt steps were taken to further develop the case for hearing. Some delay did occur in securing a special judge, but this cannot be attributed solely to the original taxpayers-petitioners.

The claim is made that the circuit court erred in finding that a grand jury may be used to recommend impeachment of a public official. This was not a finding in the present case on which the circuit court based its removal decision. It appeared in a recitation of the factual history of the prior proceeding involving Commissioner Goodwin.¹⁰

For the foregoing reasons, we affirm the judgment of the circuit court.

Affirmed.

1 . The following guidelines were established: "However, on remand it must be determined whether the other commissioners acted: (1) in good faith and non-negligently; (2) in good faith but negligently; or (3) in bad faith and wilfully. If the commissioners acted in good faith and non-negligently, then they can neither be removed from office nor be required to repay the money. If, however, the commissioners acted in good faith, but negligently, they can be removed, but cannot be held personally liable for the misappropriated funds. Finally, if Commissioners Cooke and Armstrong acted both in bad faith and wilfully, they can be removed from office and can be held personally liable for repayment of the misappropriated funds.” 170 W.Va. at 162, 291 S.E.2d at 477.

2 . Special Judge Frank J. DePond of the Seventeenth Judicial Circuit was appointed after the case was remanded.

3 . W.Va. Code, 11-8-31, provides in material part:

"The State, a taxpayer, or the tax commissioner may institute and prosecute to final judgment any proceeding for the removal of a member of a local fiscal body who has wilfully or negligently violated any of the provisions of this article.

“Upon the petition of the State, a taxpayer, or the tax commissioner, the court, or in vacation the judge, shall set a time for hearing the petition. An attested copy of the petition and the charges contained therein shall be served upon the defendants at least twenty days prior to the date of hearing. No other pleading or notice of the proceedings shall be necessary.”

4 .W.Va. Code, 6-6-7, refers to W.Va. Code, 6-6-5, which generally states the grounds for removal: "for official misconduct, malfeasance in office, incompetence, neglect of duty, or gross immorality.”

5 . The judge who presided at Commissioner Goodwin’s removal hearing concluded that the amount which Commissioner Goodwin acknowledged charging, i.e., $14.77, was too insignificant to warrant removal.

6 . In Powers v. Goodwin, we discussed utilizing an attorney general’s opinion or a court test "when a county commission or other fiscal body is in doubt about whether it is appropriate to expend county funds to indemnify itself for legal fees incurred.” 170 W.Va. at 160, 291 S.E.2d at 475.

7 . One commentator has summarized the matter as follows:

"In considering the limited availability of advice of counsel as a defense it must of course be remembered that in many cases such advice, though not a defense, is a palliative. Perhaps mistaken advice is more often of value in this way than by way of defense. The rule would seem to be that in all cases of mala prohibita, where advice fails to exculpate because no intent is requisite, the judge or the jury may consider the advice in mitigation of the punishment or damages, and advice will always cut off damages of an exemplary or punitive kind where the increased liability is predicated upon intent.” Note, Advice of Counsel As a Defense, 28 Va.L.Rev. 26, 29 (1941). (Footnotes omitted).

8 .In this regard, some courts have held that the advice must not be so patently erroneous as to be unacceptable to a reasonably prudent person. 6A G. Bogert & G. Bogert, The Law of Trusts and Trustees § 541 at 164-65 (2d rev. ed. 1978); Comment, Reliance on Advice of Counsel, 70 Yale LJ. 978, 980 n.13 (1961); Note, Advice of Counsel as a Defense, 28 Va.L.Rev. 26 n.5 (1941); see United States v. Homestake Min. Co., 117 F. 481, 488 (8th Cir.1902); In Re Perel, 51 F.2d 506, 507 (S.D.Tex.1931); In Re Holbert, 48 Cal. 627, 629 (1874); People v. Vineberg, 125 Cal.App.3d 127, 137-38, 177 Cal.Rptr. 819, 825 (1981), cert. denied, 456 U.S. 945, 102 S.Ct. 2011, 72 L.Ed.2d 468 (1982); New Haven Trust Co. v. Doherty, 75 Conn. 555, 563, 54 A. 209, 212 (1903); Carty v. Toro, 223 Ind. 1, 7, 57 N.E.2d 434, 436 (1944); James v. West, 67 Ohio St. 28, 49, 65 N.E. 156, 159-60 (1902); Tuttle v. Gilmore, 36 N.J.E.Q. 617, 624 (1883); In Re Borden’s Trust, 358 Pa. 138, 143, 56 A.2d 108, 110-11 (1948); In Re Whitecar’s Estate, 147 Pa. 368, 23 A. 575 (1892).

9 . The United States Supreme Court has utilized this characterization in Smith v. Wade, 461 U.S. 30, 34, 103 S.Ct. 1625, 1628, 75 L.Ed.2d 632, 637 (1983):

10 . Petitioners argue that the trial court erred in rejecting their request for jury trial and in making certain evidentiary rulings. These assignments are not discussed in their brief and are, therefore, deemed waived. Syllabus Point 6, Addair v. Bryant, 168 W.Va. 306, 284 S.E.2d 374 (1981); Quackenhush v. Quackenbush, 159 W.Va. 351, 352, 222 S.E.2d 20, 21 (1976).