State ex rel. Banks v. Drummond

• Decision Date: 15 December 2016
• Docket Number: No. 92749-9,92749-9
• Citation: 187 Wash.2d 157,385 P.3d 769
• Parties: STATE of Washington EX REL. Gregory M. BANKS, Prosecuting Attorney of Island County, Appellant, v. Susan E. DRUMMOND, and Law Offices of Susan Elizabeth Drummond, PLLC; and Island County Board of Commissioners, Respondents.
• Court: Washington Supreme Court

187 Wash.2d 157

385 P.3d 769

STATE of Washington EX REL. Gregory M. BANKS, Prosecuting Attorney of Island County, Appellant,

v.Susan E. DRUMMOND, and Law Offices of Susan Elizabeth Drummond, PLLC; and Island County Board of Commissioners, Respondents.

No. 92749-9

Supreme Court of Washington, En Banc.

Argued September 22, 2016

Filed December 15, 2016

As Amended February 8, 2017

Reconsideration Denied February 9, 2017

Pamela Beth Loginsky, Washington Assoc. of Prosecuting Atty., 206 10th Ave. S.E., Olympia, WA, 98501-1311, for Appellant.

Robert B. Gould, Attorney at Law, 51 W. Dayton St., Ste. 208, Edmonds Bay Building, Edmonds, WA, 98020-4111, Scott Michael Missall, Athan Emmanuel Tramountanas, Short Cressman & Burgess PLLC, 999 3rd Ave., Ste. 3000, Seattle, WA, 98104-4088, for Respondents.

Josh Weiss, WA State Assn. of Counties, 206 10th Ave. S.E., Olympia, WA, 98501-1311, as Amicus Curiae on behalf of Washington State Association of Counties.

WIGGINS, J.

¶1 Island County's board of commissioners hired Susan Drummond and her law office to provide legal services. Providing legal services is among the duties of county prosecuting attorneys as combined civil and criminal county counsel. Island County's prosecuting attorney, Gregory Banks, objected to Ms. Drummond's appointment because his office was able and willing to provide the necessary legal advice. Prosecutor Banks brought a quo warranto action in the Island County Superior Court, challenging Ms. Drummond's usurpation of his elected public office.¹ The superior court denied the claim on summary judgment, holding that boards of commissioners have authority under RCW 36.32.200 to freely hire outside counsel. We reverse.

¶2 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.

FACTS

¶3 This case stems from ongoing budget and performance disputes between Island County's board of commissioners (Board) and the prosecuting attorney's office. Prosecutor Banks's office conducts a substantial amount of the county's land use and environmental law work. According to Prosecutor Banks, "Outside of criminal prosecution, land use law and the GMA [ (Growth Management Act), ch. 36.70A RCW,] are the Civil Division's ‘bread and butter.’ " Yet the Board is dissatisfied with the office's legal advice, alleging both a lack of adequate expertise and a persistent failure to defer to the Board's broad planning goals. As a result, the Board seeks other, specialized counsel to help implement the GMA. Prosecutor Banks, on the other hand, feels that his office is fully capable of providing satisfactory GMA-related counsel and that any shortfalls in his office's performance result from lack of adequate staffing and funding by the Board. As Prosecutor Banks dryly summarizes, "We have professional disagreements about policy and about budgets from time to time."

A. Budget issues

¶4 After 2008, Island County government faced extensive budget cuts. The Board's consent is required to establish and fund all unelected employee positions, including those in the prosecuting attorney's office. RCW 36.16.070 ("In all cases where the duties of any county office are greater than can be performed by the person elected to fill it, the officer may employ deputies and other necessary employees with the consent of the board of county commissioners. The board shall fix their compensation....") These budget reductions curtailed the number of staff in the prosecuting attorney's office.

¶5 The office continued to shrink through 2010. While staff cuts focused on the office's criminal division, pressure also increased on the civil division as civil staff were partly reassigned or not replaced upon retirement.² By the 2015 budget cycle, Prosecutor Banks informed the Board that his civil division was " ‘near the capacity of our resources.’ " The Board agreed that "there are times [Prosecutor Banks] does not have the necessary staff or capability to provide the services required by the Board."

¶6 Matters escalated during the 2016 budget cycle. Prosecutor Banks requested funding for four new positions: two criminal and two civil staff. The Board granted funding for the highest-priority criminal staff position and denied the remainder. Prosecutor Banks was disappointed by the Board's decision to instead retain extensive funds to employ outside civil counsel while failing to satisfy civil staffing requests in his office: "Oddly, the funds to improve ... the prosecutors' office's capacity were not placed in my budget." This money was subsequently allocated to Ms. Drummond's contract as outside counsel.

B. Performance and Personality Issues

¶7 Island County's financial tensions were also exacerbated by the Board's sense that its priorities were not well represented in the prosecuting attorney's office. The Board claimed that the prosecuting attorney's office responded too slowly, gave poor advice, and failed to support the Board's legislative goals. Yet distinguishing genuine performance issues from long-standing personality conflicts is challenging; both sides swapped insults and accusations of inadequate respect. For instance, while there is no dispute that, over the past two decades, Prosecutor Banks's office had mixed success defending GMA regulations enacted by the Board, the parties' explanations for these poor results diverge sharply.

¶8 On the one hand, Prosecutor Banks concluded that the "problems were caused by the County's [previous] use of outside counsel in the 1990s and early 2000s." This outside counsel, Prosecutor Banks claimed, cost the county "nearly a million dollars" and helped establish "regulations that were riddled with problems." Prosecutor Banks traced his office's losses in defending the GMA regulations to this past poor counsel, and to the Board's "risky decisions to push the boundaries of the GMA." As a result, he "resolved to keep GMA planning advice and litigation ‘'in house’ " by "carefully cultivat[ing] the knowledge, skill, and resources" to effectively advise on GMA issues. Emphasizing that deputy prosecutor salaries cost a fraction of the money paid to outside counsel, Prosecutor Banks roots his resistance both in frugality and in his belief in his office's superior performance.

¶9 On the other hand, the Board saw the mixed results of Prosecutor Banks's office as indicative of obstinacy and inexperience, contrasting outside counsel's past performance as "a state model" of GMA implementation. Statements from two former commissioners suggest that Prosecutor Banks's office refused to provide substantive advice during the initial GMA implementation period, telling the Board to simply " ‘[f]ollow the law.’ " Former Commissioner William McDowell described the office's apparent "refusal and/or inability to offer strategic advice on the GMA," while former Commissioner Mike Shelton characterized the proffered GMA advice as "weak." According to Commissioner Shelton, Prosecutor Banks's early failures defending the 1990s GMA implementation led the Board to believe that his office lacked "the capability [and] necessary experience" to perform GMA work going forward.

¶10 The Board generally objected to the prosecuting attorney's office's legal perspective on planning issues. Commissioner Jill Johnson criticized Chief Civil Deputy Prosecuting Attorney Dan Mitchell's "insistence that the Board could not accomplish our land use goals because our Critical Areas policy was rejected on appeal," asserting that "it was the Board's desire to strengthen the record to include progress since the time the Critical Areas Ordinance was written." Commissioner Jill Johnson felt that the strategy disconnect between the Board and Prosecutor Banks's office undermined "the Board's need for strategic guidance on how to position the County well to defend our ultimate land use policy choices." Although Deputy Prosecuting Attorney Mitchell "expressed a desire ... to demonstrate that he could meet [the Board's] needs without bringing in outside counsel," the Board worried that the prosecuting attorney's office would "jeopardize the[ ] defensibility" of GMA decisions "by failing to vigorously defend those decisions in litigation." Citing this overall dissatisfaction with Deputy Prosecuting Attorney Mitchell's performance, Commissioner Johnson concluded "that GMA land use policy could no longer be Mr. Mitchell's area of concentration."

¶11 The Board instead allocated approximately $200,000 to $250,000 to hire specialized GMA counsel. At the time of the appointment, the Board did not describe Ms. Drummond's retention as the result of any refusal or failure of Prosecutor Banks, but rather as a way of "augment[ing]" his office: "[T]hey've ... got their ... acts together[;] this is just to supplement them because they're busy[;] they're shorthanded." At the same time, the Board anticipated that they would "pick and choose some of the issues" to leave with the prosecuting attorney's office "on a case by case basis," in order to "leverage [the] resources" of both Prosecutor Banks's and Ms. Drummond's offices.

¶12 The Board then passed Island County Board of Commissioners Resolution C-48-15, which provided for Ms. Drummond's appointment as outside counsel. The Drummond contract was subsequently reviewed and approved by letter from the Island County Superior Court according to procedures laid out in RCW 36.32.200. The contract took effect on April 20, 2015. Ms. Drummond has since been advising the Board and performing other legal duties pursuant to the contract.

¶13 In reviewing the Drummond contract, Presiding Judge Vickie Churchill and Judge Alan Hancock considered Resolution C-48-15's "whereas" clauses that explained Ms. Drummond's appointment. One "whereas" clause noted that "the Prosecuting Attorney's office is unable to provide ... comprehensive and proactive legal strategy, advice and assistance" on GMA issues. Judges Churchill and Han...