Prosecutor objects to county’s plan to hire outside counsel

A squabble among Island County officials over the hiring of a consulting land-use attorney echoes of a 15-year-old controversy.

Island County Prosecutor Greg Banks said he isn’t happy that the board of commissioners long planned to hire outside counsel to help the county with its comprehensive plan update, a large and vital undertaking that is supposed to be completed in the next 18 months.

As the commissioners’ attorney, Banks said he should have been consulted. Had he been given the opportunity, he says he would have advised them that the matter should be handled in house. Doing so would not only avoid the expense of hiring outside counsel, but also give his staff the familiarization with the comprehensive plan that they may need sometime in the future.

“By going to an outside attorney, we won’t be able to develop the expertise we need in-house,” he said.

The commissioners said they weren’t trying to hide their plans from Banks and were surprised that he didn’t know about it. They said they want to work with someone with legal expertise in a very specific area of law and question whether his staff has time to dedicate to the project.

Commissioner Jill Johnson said the deputy prosecutors are relatively inexperienced and have to be “generalists” by the nature of their work.

The commissioners said they want “a specialist.”

Plus, she said, Banks consistently told the commissioners that his staff is “maxed out” and he can’t provide them with “strategic legal advice.”

“This isn’t about the prosecutor’s ego,” she said. “This is about getting the best product for the citizens.”

Banks concedes he may be sensitive about the issue because of the history behind it. A former board of commissioners hired land-use attorney Keith Dearborn to help the county write its comprehensive plan under the Growth Management Act during the 1990s.

In the year 2000, Superior Court judges forced the commissioners to stop using Dearborn as a land-use attorney when costs reached well beyond $700,000; the commissioners later hired him back as a planning consultant and paid him even more.

Banks said the products from the huge expense were “mixed as best,” with his office being left to “clean up the mess” when portions of the plan were appealed by Whidbey Environmental Action Network and others.

Litigation continues to this day, he said.

WEAN spokesman Steve Erickson estimates about 70 percent of the challenges to the county’s comprehensive plan were successful.

In the recent process, Banks said he hoped there would have been more communication from the commissioners.

The issue wasn’t on the agenda, but commissioners discussed their plans to contract with the outside attorney during a meeting last week.

Commissioners said they planned to talk about the scope of work for the attorney at a meeting on Tuesday, even though the issue again isn’t on the agenda, according to Budget Director Elaine Marlow.

Banks said the commissioners couldn’t squeeze him onto the agenda until next week.

“I hope to have a discussion with the entire board as soon as possible at a public meeting,” he said. “The public and the elected officials should know what’s going on.”

Banks said he couldn’t find anything in the budget about an outside attorney for the comprehensive plan update. He said the commissioners also haven’t asked for bids from outside attorneys; county code requires competitive bids for service contracts of over $25,000, but that commissioners can waive that in a public session.

In an email to Banks, Commissioner Helen Price Johnson said she was disappointed that he cancelled two consecutive meetings with her to discuss the issue. She wrote that the planning director has discussed the plans for an outside attorney with Banks.

“Upon receiving your memo on Friday I again asked for some of your time today, but you have refused to speak with me either in person or on the phone,” she wrote. “I understand that you feel I should have reached out to you personally at an earlier date. I can’t change the past but do hope we can step forward in a professional way to address our mutual goals.”

“It is not in the best interest of the county for this to be confrontational,” she added.

Price Johnson explained that the 2014 budget included $75,000 in the planning department for “technical legal assistance” related to the update. The amount was rolled into a $1-million earmark in this year’s budget for the comprehensive plan update.

Marlow said commissioners won’t know how much the legal counsel will cost until they figure out the scope of work.

Ultimately, the commissioners and Banks disagree about whether his office can provide the necessary legal help in a timely manner.

Price Johnson argues that the prosecutor’s office “does not have such expertise in house.”

Banks counters that he has two attorneys with expertise in land use, but he asks for another paralegal to ease workflow and give the attorneys the time to dedicate to the update.

Banks is scheduled to address the commissioners March 18.