Supreme Court denies commissioners’ request to reconsider

The state Supreme Court last week denied the Island County commissioners’ request to reconsider an opinion about the legality and constitutionality of the commissioners’ hiring of a private attorney over the objection of the county prosecutor.

The high court again sided with Island County Prosecutor Greg Banks, who argued that the commissioners cannot hire an outside attorney to perform his role as the county’s elected attorney if he is willing and able to do so. The justices’ opinion was unanimous.

Banks said he is considering now whether to take legal action to recoup about $75,000 the commissioners spent on Susan Drummond, the private attorney at the center of litigation. He said those funds were “unlawfully spent.”

Meanwhile, the commissioners chose to hire Drummond to provide planning consultant services — not as an attorney — at a rate of $185 an hour. The contract is capped at $35,000 through June 30.

The litigation, which is finally over, cost Island County nearly $450,000. The motion to reconsider alone cost about $9,000 in attorney fees, according to county Budget Director Elaine Marlow.

Island County Commissioner Helen Price Johnson said the Supreme Court’s order amending the opinion, which was released with the denial of the reconsideration, represents “a big win” for the commissioners and other counties because it creates a path for the replacement of a prosecutor due to incompetence, which was an issue argued by commissioners.

“They recognized that county commissioners are entitled to competent counsel,” she said.

Others have a different interpretation. Island County Superior Court Judge Alan Hancock, who agreed with the commissioners in the litigation, said the amended language doesn’t change the opinion in a substantial way. He said it does not create a path to replace an incompetent prosecutor, at least not in the sense that incompetence means a poor or inferior attorney.

The opinion states a judge can temporarily remove or replace a prosecutor through RCW 36.27.030 for the reasons outlined by the court, which is when the prosecutor has a disability that prevents him or her from acting, refuses to act or has a conflict of interest, Hancock explained.

This was the argument presented before the Supreme Court by Banks’ attorney, Pamela Loginsky with the Washington State Prosecutor’s Association. Both Banks and Loginsky agree with Hancock’s interpretation of the amended language.

“It means that dissatisfaction is an insufficient reason to replace a prosecutor,” Loginsky said, adding that the decision is up to the voters.

Banks said he finds irony in the commissioners’ accusations in the case.

“They spent $400,000 on attorneys who lost, and they say I’m incompetent,” he said.

Loginsky said she believes one of the Supreme Court’s motives for amending language in the opinion was that the justices wanted to clarify they were not inadvertently saying Banks was incompetent. She said there was no evidence of that.

The commissioners cited RCW 36.32.200 in hiring Drummond as an attorney and got permission from the presiding superior court judge. The ruling means that the judge must have a reason under RCW 36.27.030 to replace the prosecutor.

Banks objected two years ago when the commissioners hired Drummond, saying that his office could provide the necessary legal advice. He objected to money being spent on an outside attorney when he believed the commissioners weren’t adequately funding his office.

Commissioners said they needed Drummond, an expert in land-use law, because the prosecutor’s office didn’t have that kind of specialized legal knowledge they needed. They also argued that the prosecutor’s office refused to provide strategic legal advice and that the legal representation wasn’t up to snuff.

Drummond will continue her work on the county’s amendments to the comprehensive plan, though she is not able to provide legal advice to county staff. Drummond “had been found to be invaluable” to the county as it gathered information for the state-required Growth Management Act and that work remained to be done, the commissioners said.

Public Health Director Keith Higman, the interim planning director, said he spoke with the commissioners about hiring Drummond and agreed that it made sense because of her expertise and familiarity with the county’s comprehensive plan. Higman said he believes the line between planning and legal advice is clear and that the county won’t violate the Supreme Court’s ruling.

Before voting 3-0 to hire Drummond as a growth planning consultant, Price Johnson also made it clear that the county would avoid directing questions of a legal nature to her.

“We’ll do our best to respect that court decision and understand that line in the sand,” Price Johnson said.

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