The Village of Wellington will pay more than $21,000 in legal fees stemming from the defense of Mayor Bob Margolis and Councilman John Greene before the Palm Beach County Commission on Ethics last year.
Council members voted Tuesday to approve the repayment of legal fees, but some council members asked for village staff to look at policies to limit costs in the future.
The vote was 4-0 on two measures — one for each council member. Margolis and Greene did not take part in the discussion or vote on their respective agenda item.
Council members were concerned about the cost, but didn’t want to dissuade anyone from running for office because they might have to pay legal fees out of pocket if accused of wrongdoing as an elected official.
“The chilling effect is true,” Councilwoman Anne Gerwig said. “People won’t run for office if they feel they aren’t able to defend themselves.”
Last year, several ethics complaints were filed accusing Margolis and Greene of wrongdoing. Village Attorney Laurie Cohen noted that neither council member was found guilty.
“In both of those complaints, although there was an initial finding of probable cause in the first case, the ethics commission found that the violation was unintentional and issued a letter of instruction,” Cohen said. “In the second case, they did not find any evidence of wrongdoing.”
Margolis hired the law firm of Messer Caparello P.A. and incurred $52,825 in legal fees. According to a staff report, Wellington’s insurance policy covered $31,990, leaving a balance of $20,835.
Greene hired the same firm, costing him $18,886 in fees. The insurance paid $17,582, leaving $1,304 unpaid.
Gerwig said she was in favor of reimbursing the legal fees, but wanted to discuss a policy to limit costs in the future. She noted that Wellington residents would be paying threefold: through taxes to the ethics commission, through the insurance payment and now through reimbursement.
“My problem isn’t with covering this, it’s with the fact that we’ve paid for this three different ways,” Gerwig said. “I’d like to have, in the future, a way we can limit the cost — maybe some guidelines. This is a significant amount of money that our insurance didn’t cover.”
Cohen said that a policy could be drafted. Gerwig said although it may not be necessary, it would be a good discussion to have.
“This is a unique situation,” Gerwig said. “I couldn’t imagine these circumstances happening again in the future. But at the same time, I’d like to protect us from excessive charges.”
Councilman Matt Willhite said he wouldn’t want to preclude elected officials from having their legal fees completely covered in the future.
“If you say we’ll only cover up to a certain amount, the person filing complaints could file more to raise the cost,” he said. “I won’t allow any elected official sitting here to have their decisions borne on scare tactics or financial burdens caused by someone filing multiple complaints. I’m not going to create a policy that could burden a future council member.”
Though Willhite was concerned about the cost, he wanted to be fair to all elected officials. “I don’t want to burden future councils with a policy that handcuffs them,” he said.
Gerwig noted that the council could create guidelines for elected officials to follow. She noted the insurance only covers up to $25,000 per claim.
“Maybe they wouldn’t be able to get the lawyer from Washington who is an expert in their issue,” she said. “I don’t want to limit them, but I want to be fair. I don’t know at what point we would allow them to hire anyone under any condition.”
Willhite noted that elected officials must hire someone to defend themselves and cannot use the village attorney to save money.
“If that’s the case, I’m not going to restrict a council member from making a decision that they know is the right decision to defend them,” he said. “If they don’t get that attorney and the Commission on Ethics finds them guilty, there are penalties. How would it help to have an elected official removed from office because they couldn’t hire an attorney with the experience to represent them?”
Gerwig asked if there was a point at which the council felt elected officials should seek legal advice. “If it’s when there is probable cause, then maybe we could provide representation,” she said.
Cohen said the elected official would need representation by the time the commission found a complaint legally sufficient. “By the time there is probable cause, you’re already in a hearing,” Cohen said. “I would certainly advise someone to get an attorney the moment they know a complaint has been filed, because you might be able to head off that finding of legal sufficiency.”
During discussion of the Margolis case, Greene said he didn’t want to see ethics complaints used as a form of political persuasion.
“I think when anyone is sitting in this position and they see the abuse of the Commission on Ethics from those who may have a different point of view, they recognize how that process is being manipulated,” he said. “It is a burden on taxpayers. I think there’s a malicious attempt to create a chilling effect and keep people from seeking office.”
Coates said he believes an official should be reimbursed if they successfully defend their position. He asked Cohen whether the fact that Margolis received a letter of instruction means that he was not successful in his defense.
“I am not going to improve reimbursement for ethics complaints that are not successfully defended,” Coates said.
Cohen said there was no finding of guilt.
“It was a letter of instruction rather than an actual finding of guilt,” she said. “Clearly there was no penalty imposed, there was no finding of real wrongdoing; it was inadvertent and unintentional. I would consider that successful.”
Coates said he would support reimbursement, but agreed with Gerwig that Wellington needs to develop a policy.
“I think we need to define what ‘successfully defended’ means,” he said. “Although I know some of you are against a policy that provides amounts, we do have a duty to the taxpayer to not engage in policies that create open-ended liabilities. We are doing that, to some extent, when we approve these things without them being in the budget and without foreknowledge of what they are going to cost.”
Willhite suggested having a workshop on the issue.