By Jessie Stensland
Whidbey News Times
OLYMPIA — The Washington State Supreme Court ruled unanimously this month that 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.
Banks said his team also is 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. Drummond was paid $75,000, according to the county budget director.
The court’s decision is a vindication for Banks and the Washington Association of Prosecuting Attorneys, which supported the action by assigning staff attorney Pamela Loginsky to handle it. The lawsuit sought to oust Drummond from her job as an attorney for the board of commissioners.
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 stated.
“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 thought 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.
Commissioner 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.
Budget disagreements were at the heart of the rancor between Banks and the commissioners.
Last year, Banks 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.
The commissioners argued that the civil prosecutors didn’t have the ability or expertise, particularly strategic legal advice. In court papers, they described examples of what they consider incompetence 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.
In addition, the justices opined that allowing commissioners to hire civil attorneys without the prosecutor’s consent would set up a system of “political football,” or patronage.
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.”
A more complete version of this story was published Dec. 16 in the Whidbey News Times. Read it here: http://bit.ly/2hpxsN0
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