dissenting:
The majority’s opinion speaks to reliance upon a lawyer’s advice as not being an “absolute defense”, and concludes that the trial judge was correct that “acting on advice of counsel is not a per se defense to charges that a public official has acted unlawfully.” I do not quarrel with that proposition.
However, I insist through this dissent that reliance upon advice of counsel should have a strong bearing upon whether one so doing can be clearly and convincingly guilty of negligence, warranting removal from office. And the bearing should be even more eroding of negligence when the lawyer is one designated by statute to advise the official.
I believe that these commissioners’ reliance on their statutory counsel’s advice1 when they made the decision that led to their removal fatally clouds the “clear and convincing” evidence standard for establishing negligence sufficient to remove them from office.
Critically important facts in the overall circumstances bearing on negligence were not mentioned by the majority.
When the commissioners paid the attorneys’ fees, our law governing legal fees for public officials had never been interpreted by this Court. The commissioners, both laymen, as are almost all county officials,2 thus acted in a legal vacuum. They faced what was to them a novel and potentially dangerous (to them) legal problem and therefore sought and obtained advice from the prosecuting attorney’s office. They were told by their lawyer that they could lawfully pay the bill. Because of their concern that payment might ultimately be found unlawful, and considering the widely known fact that the removal proceeding was crassly political and infected with bad blood of the sort that leads to lawsuits, they stipulated in their order authorizing payment that if such payment should be found to be improper, it would have to be repaid. How can this conduct clearly and convincingly be negligence warranting removal?
The following colloquy during a commission meeting wherein a payment on the fee was approved, proves the reasonableness of the commissioners’ conduct and their lack of negligence:
Mr. Francis M. Curnutte, III, Assistant Prosecuting Attorney for Boone County: “I was asked a question by the Commission concerning the propriety of reimbursement of a public official for legal expenses incurred defending himself in suit or actions arising out of the scope of his capacity as a public official; to wit, a member of this Commission. He had to defend himself from certain allegations and the action ended in his favor. The grounds were shown to be without merit, and I was asked if in such a circumstance that would reimbursement of — for that official for his legal expenses be proper. I researched the issue, and I found that the overwhelming body of the law says that, yes, in such a circumstance the official may be reimbursed. The general principle of law is settled, and most jurisdictions in this country there is very little law to the contrary. In a circumstance where the official defends his actions and the suit ends in his favor, then he may be reimbursed for his legal expenses. I have a memorandum to submit to the Commission on that effect, and it is my opinion that in such a circumstance reimbursement of the official for his legal expenses would be a justified and proper expense.”
President Cooke: “O.K. In essence, you’re saying that the whole thing in a *294nutshell here is that he’s defending himself not as an individual, but as a County Commissioner.”
Mr. Curnutte: “Yeah. The law says that — the principle of law that demands that an official be held to strict accountability for his actions also demands that he be able to defend himself from unfounded allegations; and since in this case the allegations proved to be unfounded, it is well settled that' he may be reimbursed. The vast — the vast corporates of the law is uniform on this point. I checked cases all the way from California to Maine and the law is pretty well clear.”
President Cooke: “Well, you’re the attorney, and I’m not; but it would appear if we can pay good taxpayers’ money to prosecute a fellow that’s innocent, then we ought to be able to reimburse a fellow that’s found not guilty.”
Mr. Curnutte: “Yes.”
President Cooke: “Is that a fair assumption?”
Mr. Curnutte: “Yes.”
Commissioner James R. Goodwin: “My little understanding in the law is that it’s supposed to be fair for both sides.”
Mr. Curnutte: “Yes. The law states that public funds may not be used to shield a public official from illegal activities; but they may be used to defend him from groundless charges.”
Commissioner Goodwin: “O.K.”
President Cooke: “Any questions, Commissioner?”
Commissioner James W. Armstrong: “The main thing that brought this up was a question of payment to reimburse one of the present Commissioners. Do we have your recommendations on the bill — is it a just and true bill?”
Mr. Curnutte: “Yes. We do have. It appears that the bill is in order. I have checked this. This is a letter from the law office, and it is signed by Charles W. Covert, a member of the law firm in question. I have verified this by telephone that this is an accurate accounting.”
Commissioner Armstrong: “And this is pertaining to Commissioner James R. Goodwin?”
Mr. Curnutte: “Yes, it is. All those are the bills incurred by James R. Goodwin solely in defending actions arising out of his capacity as Boone County Commissioner.”
Commissioner Armstrong: “What’s the total of said bill? Do you have it?”
Commissioner Goodwin: “You’ll have to add $700.00 for this right here, Jim. Add them up there and see. I did in there, but I don’t know ...”
Commissioner Armstrong: “Ten thousand five hundred, and forty seven sixty four, I think.”
Commissioner Goodwin: “I believe so, but you can add it up. Thirteen eight four seven six four and seven hundred.”
Commissioner Armstrong: “Jim, if we entertain such a motion on this upon the advice of the Prosecuting Attorney’s Office here, and in the future something should arise, what’s your feelings on that? As far as if we would get in jeopardy.”
Commissioner Goodwin: “Was that question for me?”
Commissioner Armstrong: “Yes.”
Commissioner Goodwin: “I thought you said Ed. In the event that somewhere down the road the advice from our legal counsel who is Frank Curnutte, should prove to be false, I personally will return this money, you know. I would be forced to, anyway. Be that simple. You know, I’ve been here long enough to know that I’m still going to be shot at. But the position I take is that if at any time down the road this would prove to be an illegal expenditure, I will see that these funds are returned. I certainly don’t anticipate that, but there’s always a remote possibility.”
Commissioner Armstrong: “Frank, you have no reservations about this whatsoever?”
Mr. Curnutte: “It’s my opinion that it is a proper expense. I can’t advise the Commission ’what to do, other than my opinion that it is — it would be legal and *295•proper for you to reimburse Mr. Goodwin if you so choose.’’
Commissioner Armstrong: “My only statement is if I had to spend out-of-pocket money to defend myself for something I did here and won the case, I’d expect ...”
Commissioner Goodwin: “You’d want your money back, too; wouldn’t you?”
Commissioner Armstrong: “I’d want my money back. I believe anybody in their right mind would want their money back— on the thing.”
Mr. Curnutte: “And I think public policy would demand that.’’
Commissioner Goodwin: “Well, you know, for the record, I’ve kicked this around with a lot of people, and I have never run across anywon (sic) who does not agree with my position one hundred per cent, regardless of what side they may take.’’
Mr. Curnutte: “These are attorneys you’re speaking of?”
Commissioner Goodwin: “Yes.”
Commissioner Armstrong: “What’s your opinion, Ed?”
President Cooke: “I’ve done made it. I feel like that we’re all targets of any person or persons who choose to jump on our back for any reason, good or otherwise; and I feel like we have to have some protection. I sit in here with the Commissioners as long as I do not do anything wrong. I don’t think I should have to take money out of my own pocket to defend myself. And I also — the statement I made prior that I think you can use the taxpayers’ money to prosecute a person who does not turn out to be in a position to be removed from office, then you ought to be able to do the same thing particularly if he’s innocent.”
Commissioner Armstrong: “Based upon the recommendation of the Prosecutor’s Office, I’m going to make a motion ....” (Emphasis supplied.)
Again, the question is not whether reliance on advice of counsel is an absolute defense in removal proceedings: it is what weight should be given to the fact that these people relied on their statutory legal counsel when they decided to pay the fee, in finding whether they acted negligently.
When a county official seeks and obtains advice from his statutory attorney and then follows that advice after mature consideration, such official should not be removed except in exceptional circumstances. There are no exceptional circumstances here.
The logical corollary is that failure to follow legal advice would be a significant factor proving negligence.
Even the majority seems to recognize that a reasonably prudent person is entitled to rely on his lawyer’s advice, unless that advice is so patently erroneous as to be obvious to any reasonable person.
These commissioners have satisfied the four-part test in the majority’s opinion: there was complete disclosure of facts to the prosecutor’s office, they requested his advice as to the legality of paying the fee, they were advised that a payment was lawful, and they relied in good faith upon that advice.
Our opinion in Powers v. Goodwin, 170 W.Va. 151, 291 S.E.2d 466, 475 (1982), analyzing the conflicting interests involved in cases about removal of public officials and indemnification for their attorneys’ fees, did not depart from established removal law that “there must be either intentional deviation from the requirements of the statute or such extreme negligence as to reflect a palpable neglect of duty to warrant removal.” Here, we have not followed that good precedent.
I am authorized to state that Justice NEELY joins with me in this dissent.
. The prosecuting attorney is required by law to represent county government. W.Va. Code, 7-4-1 provides in part:
"It shall also be the duty of the prosecuting attorney to attend to civil suits in such county in which the State, or any department, commission or board thereof, is interested^ and to advise, attend to, bring, prosecute or defend, as the case may be, all matters, actions, suits and proceedings in which such county or any county board of education is interested.”
See abo Op. Att’y. Gen., June 27, 1969.
. Amicus curiae brief of the County Commissioners Association of West Virginia, the West Virginia Association of County and Circuit Clerks, and the West Virginia Assessors Association at page 4.