Inside Report: Who pays when public officials are sued?

Is a public official’s ability to work without fear of being sued a thing of significant value to the public?

A majority of the Livingston Parish Council thinks so.

The council voted June 13 to pay the legal bills of two members being sued personally for comments the pair made to a reporter. When Parish President Layton Ricks refused to sign the check, the council voted Dec. 5 to file a lawsuit seeking to force his hand.

The comments, given for a March news report on WBRZ-TV, concerned whether an engineering firm conspired with the parish’s former council clerk to charge the parish for unauthorized work on a road project.

After the report aired, Alvin Fairburn & Associates and former clerk Mary Kistler sued Council members Marshall Harris and Cindy Wale for defamation.

Fairburn and Kistler say the council members were acting outside the scope of their official duties in providing comments to the reporter. Harris and Wale disagree, saying the reporter wouldn’t have asked them for comment if they weren’t public officials.

Fairburn and Kistler both say they don’t want a penny from the parish, theoretically removing any risk of a judgment against the parish coffers.

That distinction could mean that the parish cannot use public funds to pay for Harris and Wale’s defense.

The state constitution prohibits using public funds for nonpublic purposes. In other words, the public must gain something of value each time it gives up something of value.

Is it valuable to the public to defend these kinds of lawsuits?

Parish legal adviser Christopher Moody said lawsuits in which public officials are sued only in their individual or personal capacity are becoming more common across the state.

In a legal system where plaintiffs fire the first shot, determining how the complaint is presented, public officials are at a distinct disadvantage if they must foot their own bills until they can prove the allegations are false.

And plaintiffs know that.

These suits are not about money, but intimidation, Moody said.

Indeed, for a majority of the council, the issue is not about the risk to public funds; it’s about the risk to public officials.

It is a risk, they say, that could prevent public officials from acting freely on behalf of their constituents and could even prevent others from running for office.

Harris said if the council did not support him and Wale in defending the lawsuits, any of them could be next.

“Someone found a loophole in the law to control your vote or opinion if they don’t get their way,” Harris said during a Nov. 25 council meeting.

“Eventually everyone on this council will be a target,” he said.

On the other hand, keeping taxpayer money out of the equation until an official can prove there was no wrongdoing prevents the public from paying to defend the potentially indefensible.

It also keeps the public from having to throw good money after bad to seek reimbursement for a wrongdoer’s legal fees.

The best practice, according to the state Attorney General’s Office, is to wait until a judge determines whether the official was acting in the course of his official duties.

If so, or if the judge finds the official did nothing wrong, then the official can seek reimbursement from the parish for his legal expenses, the attorney general has said.

In other words, it is better to protect the public than to protect the public official.

Heidi Kinchen covers Livingston Parish government for The Advocate. She can be reached at hkinchen@theadvocate.com.