Prosecutor’s office has OKed attorney appointments
By Marcy Stamper
Like many counties across the state, Okanogan County sometimes hires outside attorneys for their expertise in certain areas of the law or for a large workload.
But Okanogan County’s use of contract lawyers is not analogous to the arrangement that drew a rebuke for Island County from the state’s high court.
In a unanimous ruling in December, the justices found that the Island County commissioners had circumvented the standard procedure for contracting with outside attorneys.
“We hold that county boards of commissioners do not possess statutory authority to appoint outside counsel over the objection of an able and willing prosecuting attorney,” wrote Supreme Court Justice Charles Wiggins.
Okanogan County has been contracting with attorney Sandy Mackie for land-use matters since June 2013, but the situation is different because Okanogan County’s prosecutor and/or chief civil deputy prosecutor signed off on the appointment, said County Prosecutor Karl Sloan.
These issues are not unique to Okanogan County — if a county doesn’t have the staffing or the expertise, it typically may appoint a special deputy, said Sloan.
“The court said that commissioners can’t go outside when the prosecutor says he or she is willing and able. The [Island County] prosecutor opposed hiring outside counsel,” said Sloan.
“In a perfect world, we would do everything in-house, but with only one civil deputy, handling litigation is out of the question,” said Sloan. Albert Lin is Okanogan County’s sole civil deputy prosecutor.
If the Okanogan County commissioners asked the county’s prosecutors to handle land-use matters, that would be fine, but they need adequate staffing to do so, said Sloan. If one attorney is handling these cases, he or she is not available for other matters.
In the Island County case, the commissioners’ decision seemed to be driven by ideology.
“The justices found that the Island County commissioners appeared to have sought outside counsel because they ‘generally objected to the prosecuting attorney’s office’s legal perspective on planning issues,’ not because the county’s own lawyers were not available,” according to the Supreme Court opinion.
The matter is important because it could interfere with the will of the public, said the justices. “Allowing a county board of commissioners to unilaterally contract with outside counsel over the objection of an able and willing prosecuting attorney would unconstitutionally curtail the right of the county’s voters to choose their elected official,” wrote Wiggins.
Okanogan County has eight attorneys, seven in the criminal division — three for adult felonies, one for juvenile cases, two for district court, and one for child-support matters — plus one civil attorney. “We have more work than we can handle, civilly and criminally,” said Sloan.
Over the past several years, the prosecutor’s office has lobbied the commissioners — unsuccessfully — for money to add a criminal attorney, said Sloan. The office did get some more funding to be able to offer a higher salary to attract a wider pool of applicants for the civil deputy position, he said.
Nevertheless, the prosecutor’s office has had to absorb cuts in other areas, such as for supplies or travel, said Sloan.
The most urgent need in Okanogan County is for another criminal prosecutor, because the county’s felony caseload has increased significantly. All those cases are handled by staff attorneys, said Sloan.
“The felony caseload was inordinately high in 2016,” said Sloan. Between 2008 and 2013, the county had an average of 364 new felony cases annually. Over the past four years, caseloads were in the 400s but, in 2016 the load hit 550, he said.
Outside attorneys are used most often when an issue is beyond the expertise of staff attorneys or there is a conflict of interest. In the ongoing litigation brought against Okanogan County by its Superior Court administrator, all parties — the plaintiffs, the county, and the presiding judge — have had to be hired from outside because of the involvement of county staff, elected officials and judges.
“The new board of commissioners could decide they want to keep land-use matters in-house, but we need the resources to do that,” said Sloan. “In-house staff is much more of a bargain than private counsel.”
As special deputy prosecutor for the county, Mackie handles the county’s comprehensive plan, zoning code, water issues, and all-terrain vehicle matters, including representing the county in litigation.
The county’s initial contract with Mackie was with his former law firm, Perkins Coie. When he was contracted through Perkins Coie, Mackie’s hourly rate was $300 for administrative matters and $350 for litigation. The county entered into a new contract with him in November at an hourly rate of $200, plus reimbursement of fees for legal research.
“We’re here to do our job and are more than happy to take on what they want us to do,” said Sloan.