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ESCANABA -- The Delta County Board of Commissioners voted to postpone discussion on hiring a new municipal attorney until after a county administrator is hired after concerns were raised that a new attorney could interfere with the county’s insurance.
“I’m looking for someone who has nothing but an interest in serving the people of Delta County and this board. And if that makes me naive, then so be it,” said Board Chair Dave Moyle Tuesday.
Currently, the county is represented by the prosecutor’s office in civil litigation matters. However, Moyle has raised concerns about the possibility of “frivolous lawsuits” and a possible conflict of interest if the prosecutor’s office is the county’s defense against such suits.
County Prosecutor Lauren Wickman spoke at the commission’s regular meeting Tuesday and pointed the commission to two state statutes that establish the prosecutor’s office is the default representation for the county. In the case of a conflict of interest, the statues have provisions for the county to use outside counsel for the specific case or issue that caused the conflict to arrise.
According to Wickman, the prosecutor’s office has represented the county for the past five years. In that time, only one conflict of interest has arisen that required to county to seek outside counsel. In that particular case, the county used an attorney hired through the Michigan Municipal Risk Management Authority, the county’s insurance provider.
“My concern is by hiring somebody to cover these frivolous lawsuits that that MMRMA coverage would be negated and this county would be on the hook for thousands and thousands of dollars -- not only in legal costs but in potential settlements,” said Wickman.
One concern raised by the commission Tuesday was Wickman’s lack of malpractice insurance. Because Wickman only practices as a governmental employee, there are no malpractice insurance options available to her, but her work is protected by the county’s coverage through the MMRMA. An outside attorney not hired through the agency would not have the same protection.
Moyle, however, expressed that he was less than impressed with the MMRMA’s legal services. The county has been represented by counsel from the MMRMA in two lawsuits, both of which were settled out of court.
“The MMRMA is an insurance company and they give us services, but they have their own interests at mind sometimes too, hence the settling out of court,” said Moyle.
Moyle has taken heat for his suggestion to hire a new municipal attorney, primarily because he was the one to suggest a new attorney be hired and because he presented the idea with a possible candidate in mind that had previously represented his family.
“I’m not expecting the sky to fall. I’m not checking my toothpaste for a bomb. I don’t think we’re going to be sued next week, but I do think that after so many things have been thrown at this county -- when I brought this up I was accused of trying to get my good buddy money. He’s not my friend -- I just want to be prepared on behalf of the people. That’s not committing us to one dime. Not one dime,” said Moyle.
Moyle’s initial suggestion for the position was Attorney Scott Graham, who is perhaps most well-known for his defense of Kaleb Franks, one of a number of men charged for plotting to kidnap Governor Gretchen Whitmer.
Moyle has repeatedly described Graham as the “most winningest” attorney in the Sixth Circuit and has stressed he wants a municipal attorney with experience in federal court. Graham’s qualifications as a municipal attorney have been questioned by residents, as his practice primarily focuses on criminal law, but his website does include “municipal litigation” as a practice area under civil litigation. The website does not indicate whether his clients have been municipalities or private citizens involved in litigation against local units of government.
“I don’t care who we hire as long as we hire somebody who works specifically for the board when we need it,” Moyle said Tuesday.
Commissioner Steve Viau, who serves on a number of other boards, came to the meeting with a list of attorneys that currently represent other public entities, such as Public Health Delta Menominee Counties. However, after hearing from Wickman, he said he was sold on the prosecutor’s office remaining the county’s primary legal counsel.
“I like the proactive approach, but I don’t support a proactive approach when we already have a process in place and competent people that have spoken tonight that can do everything we’re asking them to do at this level, and I do not foresee any lawsuits as long as we mind our Ps and Qs,” he said.
One of the primary reasons Viau cited for his position was cost. According to Wickman, the going rate for a municipal attorney is $150 to $250 per hour. The county is currently charged $6,000 per year for legal services. Had the county been charged the going rate, a single case from last year would have cost the county roughly $10,000.
“She sold me. Everything that she can do for the county, we’re paying her $6,000. I have no issue utilizing our own department at the beginning level,” said Viau.
Moyle repeatedly stated his interest in hiring a new attorney was not a reflection on Wickman or her office’s performance.
While request for proposal documents that would have been published and sent to attorneys that had previously represented the county were presented to the commissioners at the meeting, the board voted to table the issue in a 3-2 split vote. Voting to table were Viau, Commissioner John Malnar, and Commissioner Bob Petersen, who said he saw no urgency to put out the RFP. Voting against tabling the issue were Moyle and Commissioner Bob Barron, who said “there’s always wisdom in multiple counsel” and that the RFP would give the county possibilities for attorneys moving forward.