HomeMy WebLinkAbout010416_cabs02JEFFERSON COUNTY
BOARD OF COUNTY COMMISSIONERS
COUNTY ADMINISTRATOR'S BRIEFING AGENDA REQUEST
TO: Board of County Commissioners
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FROM: Philip Morley, County Administrato J
DATE: January 4, 2016
RE: Draft Letter to Island County on RCW 36.32.200
STATEMENT OF ISSUE: The County Commissioners will review and finalize a Draft letter
to the Island County Board of County Commissioners on RCW 36.32.200 regarding employment
of special attorneys.
ANALYSIS: The Island County Board of Commissioners has requested that the Board o_ f
County Commissioners submit a letter supporting the importance of retaining County
Commissioner authority under RCW 32.36.200 to obtain appointment of legal counsel with the
approval of the presiding Superior Court Judge.
A draft letter is enclosed for Board review, editing and finalization to send to the Island County
Commissioners.
This issue arises from State of Washington v. Susan E. Drummond and Island County Board of
Commissioners, No. 15-2-00465-9.
A copy of RCW 36.32.200 regarding appointment of special attorneys is enclosed, accompanied
by RCW 36.27.020 and RCW 36.27.040, relating to the duties of the Prosecutor and appointment
of deputy prosecutors.
FISCAL IMPACT: None.
RECOMMENDATION: Review the draft letter, make edits to finalize the draft, and pass a
motion authorizing the Commissioners to sign and transmit the final letter to the Island County
Board of Commissioners.
RE ED BY:
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P11 ip Morley, Cou y Administrates
Date
RCW 36.32.200 Special attorneys, employment of.
It shall be unlawful for a county legislative authority to employ or contract with any attorney or
counsel to perform any duty which any prosecuting attorney is authorized or required by law to
perform, unless the contract of employment of such attorney or counsel has been first reduced to
writing and approved by the presiding superior court judge of the county in writing endorsed
thereon. This section shall not prohibit the appointment of deputy prosecuting attorneys in the
manner provided by law.
Any contract written pursuant to this section shall be limited to two years in duration.
[1983 c 129 § 1; 1963 c 4 § 36.32.200. Prior: 1905 c 25 § l; RRS § 4075.]
RCW 36.27.020 Duties.
The prosecuting attorney shall:
(1) Be legal adviser of the legislative authority, giving them [it] his or her written opinion
when required by the legislative authority or the chairperson thereof touching any subject which
the legislative authority may be called or required to act upon relating to the management of
county affairs;
(2) Be legal adviser to all county and precinct officers and school directors in all matters
relating to their official business, and when required draw up all instruments of an official nature
for the use of said officers;
(3) Appear for and represent the state, county, and all school districts subject to the
supervisory control and direction of the attorney general in all criminal and civil proceedings in
which the state or the county or any school district in the county may be a party;
(4) Prosecute all criminal and civil actions in which the state or the county may be a party,
defend all suits brought against the state or the county, and prosecute actions upon forfeited
recognizances and bonds and actions for the recovery of debts, fines, penalties, and forfeitures
accruing to the state or the county;
(5) Attend and appear before and give advice to the grand jury when cases are presented to it
for consideration and draw all indictments when required by the grand jury;
(6) Institute and prosecute proceedings before magistrates for the arrest of persons charged
with or reasonably suspected of felonies when the prosecuting attorney has information that any
such offense has been committed and the prosecuting attorney shall for that purpose attend when
required by them if the prosecuting attorney is not then in attendance upon the superior court;
Ir
(7) Carefully tax all cost bills in criminal cases and take care that no useless witness fees are
taxed as part of the costs and that the officers authorized to execute process tax no other or
greater fees than the fees allowed by law;
(8) Receive all cost bills in criminal cases before district judges at the trial of which the
prosecuting attorney was not present, before they are lodged with the legislative authority for
payment, whereupon the prosecuting attorney may retax the same and the prosecuting attorney
must do so if the legislative authority deems any bill exorbitant or improperly taxed;
(9) Present all violations of the election laws which may come to the prosecuting attorney's
knowledge to the special consideration of the proper jury;
(10) Examine once in each year the official bonds of all county and precinct officers and
report to the legislative authority any defect in the bonds of any such officer;
(11) Make an annual report to the governor as of the 31 st of December of each year setting
forth the amount and nature of business transacted by the prosecuting attorney in that year with
such other statements and suggestions as the prosecuting attorney may deem useful;
(12) Send to the state liquor control board at the end of each year a written report of all
prosecutions brought under the state liquor laws in the county during the preceding year,
showing in each case, the date of trial, name of accused, nature of charges, disposition of case,
and the name of the judge presiding;
(13) Seek to reform and improve the administration of criminal justice and stimulate efforts to
remedy inadequacies or injustice in substantive or procedural law.
[1995 c 194 § 4; 1987 c 202 § 205; 1975 1st ex.s. c 19 § 1; 1963 c 4 § 36.27.020. Prior: (i) 1911 c 75 § 1; 1891 c 55
§ 7; RRS § 116. (ii) 1886 p 65 § 5; 1883 p 73 § 10; Code 1881 § 2171; 1879 p 93 § 6; 1877 p 246 § 6; 1863 p 408 §
4; 1860 p 335 § 3; 1858 p 12 § 4; 1854 p 416 § 4; RRS § 4130. (iii) 1886 p 61 § 7; 1883 p 73 § 12; Code 1881 §
2168; 1879 p 94 § 8; 1877 p 247 § 8; RRS § 4131. (iv) 1886 p 61 § 8; 1883 p 74 § 13; Code 1881 § 2169; 1879 p 94
§ 8; 1877 p 247 § 9; RRS § 4132. (v) 1886 p 61 § 9; 1883 p 74 § 14; Code 1881 § 2170; 1879 p 94 § 9; 1877 p 247
§ 10; RRS § 4133. (vi) 1886 p 62 § 13; 1883 p 74 § 18; Code 1881 § 2165; 1879 p 95 § 13; 1877 p 248 § 14; 1863 p
409 § 5; 1860 p 334 § 4; 1858 p 12 § 5; 1854 p 417 § 5; RRS § 4134. (vii) Referendum No. 24; 1941 c 191 § 1;
1886 p 63 § 18; 1883 p 76 § 24; Code 1881 § 2146; 1879 p 96 § 18; RRS § 4136. (viii) Code 1881 § 3150; 1866 p
52 § 10; RRS § 4137. (ix) 1933 ex.s. c 62 § 81, part; RRS § 7306-81, part.]
NOTES:
Intent -- 1987 c 202: See note following RCW 2.04.190.
Annual report to include number of child abuse reports and cases: RCW 26.44.075.
RCW 36.27.040 Appointment of deputies -- Special and temporary deputies.
The prosecuting attorney may appoint one or more deputies who shall have the same power in all
respects as their principal. Each appointment shall be in writing, signed by the prosecuting
attorney, and filed in the county auditor's office. Each deputy thus appointed shall have the same
qualifications required of the prosecuting attorney, except that such deputy need not be a resident
of the county in which he or she serves. The prosecuting attorney may appoint one or more
special deputy prosecuting attorneys upon a contract or fee basis whose authority shall be limited
to the purposes stated in the writing signed by the prosecuting attorney and filed in the county
auditor's office. Such special deputy prosecuting attorney shall be admitted to practice as an
attorney before the courts of this state but need not be a resident of the county in which he or she
serves and shall not be under the legal disabilities attendant upon prosecuting attorneys or their
deputies except to avoid any conflict of interest with the purpose for which he or she has been
engaged by the prosecuting attorney. The prosecuting attorney shall be responsible for the acts of
his or her deputies and may revoke appointments at will.
Two or more prosecuting attorneys may agree that one or more deputies for any one of them
may serve temporarily as deputy for any other of them on terms respecting compensation which
are acceptable to said prosecuting attorneys. Any such deputy thus serving shall have the same
power in all respects as if he or she were serving permanently.
The provisions of chapter 39.34 RCW shall not apply to such agreements.
The provisions of *RCW 41.56.030(2) shall not be interpreted to permit a prosecuting
attorney to alter the at -will relationship established between the prosecuting attorney and his or
her appointed deputies by this section for a period of time exceeding his or her term of office.
Neither shall the provisions of *RCW 41.56.030(2) require a prosecuting attorney to alter the at -
will relationship established by this section.
[2009 c 549 § 4047; 2000 c 23 § 2; 1975 1st ex.s. c 19 § 2; 1963 c 4 § 36.27.040. Prior: 1959 c 30 § 1; 1943 c 35 §
1; 1903 c 7 § 1; 1891 c 55 § 6; 1886 p 63 § 17; 1883 p 76 § 23; Code 1881 § 2142; 1879 p 95 § 16; Rem. Supp.
1943 § 115.1
NOTES:
*Reviser's note: RCW 41.56.030 was alphabetized pursuant to RCW 1.08.015(2)(k),
changing subsection (2) to subsection (12). RCW 41.56.030 was subsequently amended by 2011
1st sp.s. c 21 § 11, changing subsection (12) to subsection (11).
1820 Jefferson Street
PO Box 1220
Port Townsend, WA 98368
Phil Johnson, District 1 David W. Sullivan, District 2 Kathleen Kler, District 3
January 4, 2016
The Honorable Helen Price Johnson, BoCC Chair
The Honorable Richard Hannold, Commissioner
The Honorable Jill Johnson, Commissioner
Island County Commissioners Office,
P.O. Box 5000,
Coupeville, WA 98239-5000
RE: RCW 36.32.200
Dear Chair Johnson, Commissioner Hannold and Commissioner Johnson,
The Jefferson County Commissioners are writing to express the need to retain RCW 36.32.200
as an infrequent, but essential, tool for securing legal advice for the County government in
those very rare instances when the elected Prosecutor has a conflict and is unwilling to appoint
an outside Special Deputy Prosecuting Attorney.
Jefferson County's history and the Commissioners' rationale are described below.
1. There is a close and excellent working relationship between the County Commission and
the Prosecuting Attorney's Office that has been in existence for at least 19 years.
2. In the past 19 years, we are aware of two occasions when the Jefferson County
Commissioners utilized the tool available to them through RCW 36.32.200.
3. One occasion arose when Recall Petitions were filed against two sitting County
Commissioners. Since the Prosecutor's Office is statutorily the counsel for the municipal
Phone (360) 385-9100 Fax (360) 385-9382 jeffbocc@co.jefferson.wa.us
corporation and not for any individuals who serve as officials of that corporation,
particularly those who are alleged to have acted in an "ultra vires" manner, a conflict
arose and this office could not defend the individual elected officials against the recall
petitions.
4. The second conflict occasion arose when there was a dispute between the elected
Prosecuting Attorney (not the current Prosecutor) and the elected District Court Judge
regarding the powers of their respective offices. For State of Washington v. Jefferson
County District Court, Cause #12-2-00013-1, the Prosecutor would not agree to provide
representation for the District Court and Judge, nor to appoint an outside special deputy
prosecuting attorney for that purpose. To provide the District Court representation, the
County Administrator, acting on behalf of the Board of County Commissioners, identified
outside counsel with pertinent municipal law expertise, prepared a written contract, and
presented the contract and the need for legal representation to the presiding Superior
Court Judge. The Judge signed and approved the contract pursuant to RCW 36.32.200.
The Superior Court Judge, in this instance, was Anna M. Laurie, Presiding Superior Court
Judge for Kitsap County, who was the Supreme Court Appointed Visiting Judge for
Jefferson County.
5. Using RCW 36.32.200 to obtain outside legal counsel is a rare exception to be used as a last
resort, but an important one. Normally, outside legal counsel or labor relations assistance,
when needed, is provided willingly by the County Prosecutor and appointed by the
Prosecutor as a special deputy prosecuting attorney, or is provided with the Prosecutor's
knowledge and cooperation, as outlined below.
6. Jefferson County uses an outside consultant, rather than the resources of the Prosecutor's
Office, to represent the County in labor negotiations with its collective bargaining units.
The consultant for those matters is retained by the County by the Board of County
Commissioners. The consultant contract is reviewed and approved as to form by the
Prosecutor's Office.
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7. Jefferson County is a member of the Washington Counties Risk Pool. Jefferson County has
used outside counsel for tort claims against the County that are tendered to the
Washington Counties Risk Pool for defense. Counsel in these cases are chosen and
retained by the Risk Pool, as said counsel has the expertise in the areas necessary to
defend the specific claims brought against the County. The Prosecutor's Office is consulted
with and advised regarding these instances.
8. In addition, Jefferson County has used outside legal counsel through the Washington
County Risk Pool for "pre -defense" to advise the County on how to reduce, avoid or settle
exposure on matters that could be potential future claims (particularly regarding potential
personnel/employment claims), but that are not actual claims. Counsel in these instances
are also chosen and retained by the Risk Pool, as said counsel have the expertise in the
areas necessary to reduce, avoid or settle the potential claims against the County. The
request for "pre -defense" services is typically initiated by the Clerk of the Board/Human
Resources Manager or the County Administrator through the Risk Pool, with notification
provided to the Prosecutor's Office.
9. The Risk Pool representative and the County Prosecutor's Office will typically discuss the
person or firm the Risk Pool intends to hire for the defense of a claim or the "pre -defense"
of a potential claim against Jefferson County. The Prosecutor's Office generally defers to
the Risk Pool's choice because the Risk Pool has a 'stable' of attorneys they retain based
primarily on the type(s) of tort(s) alleged.
10. These attorneys are not County employees and do not receive appointments as Special
DPAs.
11. Jefferson County has also used outside counsel for the defense of other claims brought
against the County when it has been determined the expertise of outside counsel is
needed. This is also done based on the Prosecutor's Office's advice and recommendation,
and with the express consent of the Board of County Commissioners. These cases have
included, by way of example only, lawsuits brought against the county based on alleged
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violations of the Growth Management Act, the Shoreline Management Act and the Public
Records Act.
12. Representation in the matters listed directly above is through a contract for outside
counsel approved by the Prosecutor's Office (sometimes also approved by the Board of
County Commissioners) and by appointment by the County Prosecutor of the outside
counsel as a special deputy prosecuting attorney.
13. Typically, the County Commission/County Administrator pays for the outside counsel
defending cases that are not within the coverage provided to the County by the Risk Pool.
14. The County Prosecutor will appoint outside counsel as special DPA to represent the State
of Washington in criminal matters where the Prosecutor's Office would have a conflict of
interest.
In conclusion, we enjoy and value a long, on-going cooperative relationship with the
Prosecutor's Office, which includes routine and frequent appointments of outside counsel by
the Prosecutor, and other appointments with the Prosecutor's support. However, as shown by
two instances in 19 years, rare instances do occur where a Prosecutor is unable or unwilling to
provide legal counsel/representation through his/her Office, and is unable or unwilling to
appoint an outside special deputy prosecuting attorney. RCW 36.32.200 was enacted by the
State Legislature to address just these situations, and to provide county government an
alternate means to obtain essential legal advice. RCW 36.32.200 does not give the County
Commissioners a free pass to ignore and bypass the Prosecutor or to abuse this avenue.
Rather, a Presiding Superior Court Judge must first exercise independent oversight on whether
the situation requires outside counsel through RCW 36.32.200, and then decide whether or not
to approve the contract. Both the Legislative and the Judicial Branches must agree before RCW
36.32.200 can be invoked.
RCW 36.32.200 has been used and interpreted in this fashion for years in Jefferson County and
other counties in Washington State. RCW 36.32.200, as enacted by the State Legislature, and
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as presently used and interpreted, is a vital, though rarely -used, tool for county government. It
ensures the government can obtain timely legal advice so it can function, and is an important
check and balance against potential abuse by an elected Prosecutor, in instances when a
Prosecutor may withhold service.
Approved by motion of the Jefferson County Board of Commissioners, and signed this 4th day
of January, 2016, at Port Townsend, Washington.
Kathleen Kler, Chair Phil Johnson, Commissioner David Sullivan, Commissioner
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