Background
Douglas County Commissioner Lora Thomas released information from an anonymous letter concerning alleged mismanagement in the county sheriff’s office while campaigning for sheriff. Outside counsel retained by the county concluded that Thomas had likely violated no state law. After Thomas later released a redacted version of outside counsel’s report over the other commissioners’ objections, the county attorney and the Arapahoe County Sheriff’s Office investigated whether that disclosure could support criminal charges. No charges were filed.
Thomas privately retained counsel without notifying the other commissioners or seeking advance approval for reimbursement. After the investigations ended, she asked the Board of County Commissioners to reimburse $5,715 in legal fees. When the Board refused, Thomas sued for a declaration that she was entitled to reimbursement under the Colorado Governmental Immunity Act (CGIA) or under Wadlow v. Kanaly. The district court dismissed the CGIA theory and later entered summary judgment for the Board on the Wadlow theory.
The Court’s Holding
The Colorado Court of Appeals affirmed. It held that the CGIA did not require reimbursement because Thomas had not been defending against a tort claim arising from an injury covered by the statute. The investigations did not result in any claim or court proceeding against Thomas or the county, and allegations of possible criminal misconduct did not trigger the CGIA’s defense and indemnification provisions.
The court also rejected Thomas’s characterization of Wadlow as creating a common-law right to reimbursement. Reading Wadlow narrowly in light of later decisions, the court explained that fee reimbursement requires statutory authorization and has been considered in official-capacity civil litigation concerning the respective powers and duties of governmental bodies. Thomas identified no authorizing statute, the investigations never became litigation, and they did not concern a civil dispute over the scope of competing governmental powers.
The court declined to treat the Colorado Supreme Court’s unpublished C.A.R. 21 order in Adams County v. Culpepper as either binding or persuasive authority because C.A.R. 21(o) prohibits citation of unpublished orders as precedent. It also denied the Board’s request for appellate attorney fees, concluding that Thomas’s unsuccessful appeal was not substantially frivolous, groundless, or vexatious.
Key Takeaways
- The CGIA’s defense and indemnification provisions do not reimburse a public employee’s legal expenses arising solely from internal or criminal investigations when no covered tort claim has been asserted.
- Wadlow does not establish a general common-law reimbursement remedy for elected officials and does not extend to investigations that never produce official-capacity civil litigation over governmental powers.
- Unpublished Colorado Supreme Court orders issued under C.A.R. 21(o) may not be used as binding precedent or persuasive authority.
Why It Matters
The decision limits the circumstances in which Colorado public officials may shift personally incurred legal fees to a county. An official’s retention of counsel in response to an internal or potential criminal investigation, without advance authorization or a statutory basis for reimbursement, does not itself obligate the public entity to pay.
The opinion also reinforces the narrow treatment of Wadlow and provides guidance on C.A.R. 21(o): litigants cannot rely on unpublished Rule 21 orders to support later arguments, even by labeling those orders merely persuasive.