High court rules Island County Commissioners broke the law in hiring outside attorney

The Washington State Supreme Court ruled unanimously this week that the Island County commissioners acted in an unlawful and unconstitutional manner when they hired a private attorney over the objection of the county prosecutor.

Yet the decision may not be the end of a contentious lawsuit involving the commissioners, Island County Prosecutor Greg Banks and private land-use attorney Susan Drummond. Commissioner Helen Price Johnson said she wants to ask the high court to reconsider the decision.

Banks, who is on medical leave, said his team is also looking into the possibility of recouping fees the county paid to Drummond and the law firms that unsuccessfully defended her and the commissioners. The county spent $433,000 on the lawsuit and Drummond was paid $75,000, according to the county budget director.

The court’s decision is a vindication for Banks and for the Washington Association of Prosecuting Attorneys, which supported the quo warranto action by assigning staff attorney Pamela Loginsky to handle it. The lawsuit sought to oust Drummond from her role as an attorney for the board of commissioners, arguing that she was unlawfully usurping the role of the prosecutor as legal advisor to the county.

The opinion, authored by Justice Charles Wiggins, tore apart many of the arguments set forth by the commissioners’ attorneys.

“When the voters choose an elected official, they necessarily choose who will be responsible for the duties of that office,” it states. “It would be fruitless to delegate the selection of county officers to the voters if the duties of those officers could be freely delegated to officers appointed by other government branches.”

Banks said he felt the law was obvious, even though the superior court judges in two counties disagreed. A visiting Skagit County judge granted a summary judgment motion dismissing the lawsuit. The Supreme Court then granted direct review on appeal, which is relatively rare.

Price Johnson said the decision puts all counties at risk and that the “checks and balances” in county government have been overturned.

“Counties are now in a very vulnerable position as county prosecutors now potentially have the power to withhold adequate legal representation until their budget demands are met,” she said. “The Supreme Court’s only remedy for counties with prosecutors who may be abusing this power or providing inadequate or unethical legal representation for certain county officials is the ballot box every four years.”

She said she will ask her fellow commissioners, Jill Johnson and Rick Hannold, to authorize their private attorneys to file a request for reconsideration with the Supreme Court.

The Association of Washington Counties filed an amicus brief in support of the county, but general counsel Josh Weiss said the decision may not have a great impact countywide.

“We are really hoping the practical effect is minimal,” he said.

Weiss said commissioners are in the unique position in which they don’t get to pick their own attorneys but have to rely on the voters. He said that could be disadvantageous for a county since the adversarial legal system is set up with the presumption that people can pick their own attorneys.

Skagit County Prosecutor Richard Weyrich, the incoming president of the prosecutor’s association, also predicted the opinion would have a small impact. He pointed out that the issue had gone unresolved for a hundred years because there hadn’t been a disagreement between elected officials before that led to a legal challenge.

It’s common practice for counties — including Island County — to use private attorneys, but permission from the prosecuting attorney was explicitly granted or implied.

Weyrich said the ruling is good for taxpayers since it puts limits on commissioners’ ability to hire expensive outside attorneys.

“It’s a poor use of taxpayers’ money,” he said of private attorneys, explaining that staff attorneys are more efficient and often more effective.

In fact, he said he campaigned for office on the promise of curtailing the use of outside attorneys. In the two years before he was elected, the office spent about $1.9 million on private attorneys; he eliminated the use of private attorneys altogether in his second year in office, though he’s not opposed to hiring private attorneys for certain, specialized legal problems.

As described in the opinion, budget disagreements were at the heart of the rancor between Banks and the commissioners. Banks felt that the commissioners, who set the budgets for all county departments, were underfunding his civil division.

Last year he discovered the commissioners were hiring Drummond to provide legal advice for the comprehensive plan update. He told the board that hiring the outside attorney without his permission was unlawful because, under law and the state constitution, it’s the county prosecutor’s job to provide legal advice to the board.

He argued that his civil deputies were qualified to handle the update and that hiring Drummond was a waste of money that could be used to bolster his office; the board even admitted that his office was underfunded, the decision states.

The commissioners, on the other hand, argued that the civil prosecutors didn’t have the ability or expertise to provide the legal services they needed, particularly strategic legal advice. In court papers, they described examples of what they felt was incompetence in the prosecutor’s office as well as the prosecutor’s refusal to provide legal help on policy issues he disagreed with.

The Supreme Court ruled the commissioners do not have the authority to replace an elected official, even if he is incompetent. The justices found that the commissioners’ action violated both statutes and the state constitution, even though Banks did not argue the constitutional issue.

In addition, the justices opined that a system in which commissioners could hire civil attorneys without the prosecutor’s consent would set up a system of “political football” or patronage with attorneys.

But in the end, Banks said the decision is about democracy.

“The Supreme Court has issued a strong statement protecting the rights of Washington voters to choose their elected county officials,” Banks said in an email. “The Court has reiterated, with crystal clarity, that county commissioners who take away the duties of other elected officials are violating both state statutes and the state constitution.”