Q Our incumbent Mayor won the general election in June, but the election was challenged in court by the losing candidate. While the Mayor is the only defendant, the claims in the complaint also involve actions taken by other Municipal officials carrying out their official duties. The Mayor employed legal help to defend the case. Now, may the city reimburse the Mayor for legal expenses and retain counsel to defend the case in order to protect the City’s interests?

A The governing authorities may employ counsel to defend the election contest in State Court under its general authority found in Section 25-1-47, provided that it is doing so in defense of claims made or brought against a Municipal officer or employee as a result of his actions while acting in his official capacity. In addition, it may employ legal counsel in accordance with its home rule authority, found at Section 21-17-5, when it has determined that it has an interest in an election contest.
The governing authorities may not reimburse the Mayor for legal expenses that were previously incurred in the defense of the election contest, due to the fact that the action was not brought against the Mayor as a result of the Mayor’s actions while acting in the capacity as Mayor. (Attorney General’s Opinions to Brock, December 1, 2014)