Editorial: Island County shouldn’t go to outside firm for legal advice
Published 1:30 am Friday, December 30, 2016
By The Herald Editorial Board
A recent unanimous decision by the Supreme Court of the state of Washington may be a timely reminder that elected officials should avoid actions that attempt to circumvent the will of the voters.
Reversing a lower court’s decision, the Supreme Court ruled Dec. 15 that the Island County Board of Commissioners acted unlawfully and unconstitutionally when it hired outside legal counsel without the approval of the elected county prosecuting attorney.
Island County Prosecutor Greg Banks filed suit against the county in August 2015 after the county contracted with an outside attorney to provide legal advice to the board of commissioners regarding the state Growth Management Act, the county’s critical areas ordinance and other land use issues. But the county hired the outside attorney without the consent of Banks, who won election to a fourth term as county prosecutor in 2014. As county prosecutor, Banks is responsible for overseeing a staff that handles criminal and civil representation for the county.
While it’s common for counties to use outside legal counsel, state law requires the consent of the elected county prosecutor, who is ultimately responsible for providing legal services to the county.
Banks objected to the use of an outside legal firm because of the additional cost to the county; his staff was equipped to handle the work and could do it more cost effectively. The board disagreed and allocated $200,000 to $250,000 to contract with another attorney.
There’s a long-standing split between the commissioners and the county prosecutor over his department’s budget and over the advice the prosecutor and his staff have provided, according to a Dec. 16 story in the Whidbey News-Times. Commissioners reportedly differed with Banks on his advice and blamed his office for setbacks in court on land-use issues. Banks countered that advice from outside law firms in the 1990s and 2000s resulted in flawed policy.
Banks has been critical of poor budget support for his office. A request for two additional civil attorneys during this year’s budget process was denied, the money for which was then used to pay for outside legal advice. A fact that didn’t work to the county’s favor in Justice Charlie Wiggins’ opinion: “Any arguments by the Board that Prosecutor Banks’ office is unable to perform due to resource constraints are undercut by the fact that the Board controls the office’s budget and staffing.”
In rejecting the county’s arguments that state law allows outside counsel to be hired when a county believes it is getting poor legal advice from the prosecutor, Wiggins wrote that past decisions and state law have held that incompetence isn’t enough to allow the county to go around the elected prosecutor. “Dissatisfaction with (or even incompetence by) a county official fails to justify billing the public for the cost of an outside replacement.”
Wiggins also noted that the Legislature in 1983 rejected legislation that would have given counties more authority to hire outside attorneys because it risked turning the prosecuting attorney’s office into a “political football.” By simply cutting the prosecutor’s budget the county could hamstring the power of the prosecutor’s office, reducing it to a patronage position.
The Whidbey News-Time reported that Island County Commissioner Helen Price Johnson may ask her fellow commissioners to request the Supreme Court reconsider its decision.
To date, the county has spent $433,000 defending itself against Banks’ lawsuit. Asking the court to reverse itself on a unanimous decision is more than a long shot, especially after reading a particular line in Wiggins’ opinion:
“We are obliged to entertain Prosecutor Banks’ version of events: that the Board, dissatisfied with the relatively conservative legal advice provided by his office, deliberately underfunded the civil division and use the retrained public funds to hire more amenable outside counsel.”
The Island County commissioners aren’t likely to seek Banks’ counsel on whether they should ask the court to reconsider, so we’ll offer this free advice to the board: Don’t.
