AGO Opinion 81030

February 23, 1981
Opinion 81030

Senator Vard Johnson
Room 1101
State Capitol Building

Dear Senator Johnson:

You have requested the opinion of this office regarding L.B. 120 which would allow for the recovery of attorneys fees by a successful plaintiff in a mandamus action. Specifically you have inquired as follows:

"Inasmuch as such actions inevitably are brought against an individual who is an employee of some governmental subdivision or the state itself, would the attorney's fee allowed by L.B. 120 be assessed against and recoverable from the individual defendant or rather would it be assessed against and recoverable ultimately against the governmental subdivision or state that employs him?"

In our opinion, such attorneys fees would be recoverable from the individual. The writ of mandamus is properly directed to the individual holding office in their official capacity. 55 C.J.S. Mandamus, §2, p.14; Cooperider v State ex. rel. Stevens, 46 Neb. 84, 64 N.W. 372 (1895). The governmental subdivision is not a party to the suit and therefore an award against said entity could not be made. Theoretically the governmental entity may have an interest adverse to, that of an official who has neglected to perform an act required by law.

You have further inquired as follows:

"If you conclude that such fees are recoverable only from the personal defendant, what policies exist, if any, to reimburse the personal defendant?"

While we cannot speak definitively regarding the policies of governmental subdivisions, we are aware of no formal policies for such reimbursement by the State of Nebraska.

Very truly yours,