ESCANABA — The Delta County Board of Commissioners took a series of actions related to attorneys this week, including deciding not to terminate a contract with controversial attorney Scott Graham — who has reportedly cut contact with the county — and seeking to secure legal files from past counsel, including retiring attorney Terry Burkhart.

Most of the discussion Tuesday was in some way related to gaining access to the county’s files, which are legally considered part of the county’s public record and subject to the Freedom of Information Act following the 2020 Michigan Supreme Court case “Bisio v. City of the Village of Clarkson.” At least a portion of Graham’s files are being sought as part of a FOIA request from Former Delta County Airport Manager Andrea Nummilien, who was the subject of an investigation by the county that was led by Graham’s office in late 2023 and early 2024.

Initially, Nummilien’s FOIA request seeking the names of people interviewed during the investigation and copies of notes, recordings, or summaries of the interviews was partially denied by the county, which said the documents she sought did not exist — a fact disproven by other documents contained in the FOIA response that referenced the missing documents. County Administrator Ashleigh Young said Graham had told the documents that his notes about the investigation were his property.

When the 2020 supreme court case was raised, the county reversed course during a special meeting on Feb. 3, requesting an extension and seeking to gain access to the documents in Graham’s possession. Since then, the county has repeatedly tried to contact Graham to no avail.

“We also sent a letter to Mr. Graham making the request. We have not received acknowledgement either of our email, acknowledgement of the letter, or any sort of response,” Delta County Prosecutor Lauren Wickman, who serves as the county’s primary legal counsel told the commissioners during Tuesday’s regular board of commissioners meeting.

Wickman’s attempts to contact Graham follow attempts made by Young. Since there has been no response to any of the attempts the county plans to wait for a while and then examine other options to persuade Graham’s office to provide the files.

“I think at this point, a letter has been sent. We can clearly see the communication that our administrator has attempted to have with this individual and now our prosecuting attorney is having communication… I think that at this point we just need to wait and hear back,” said Commissioner Christine Williams.

Despite her comments about waiting, Williams had requested a second item related to Graham on Tuesday’s agenda: a discussion about terminating his contract.

“My reasoning for this is because under item number four of his contract, it specifically states ‘if a termination occurs, SG’ — Scott Graham — ‘will complete all work as requested by Delta County and will provide all files in it’s possession,'” she said.

While Williams argued that the termination clause in Graham’s contract was clear in stating that either party could terminate the agreement in writing, Board Chair John Malnar was hesitant.

“The reason we kept him going was so he could not come back at us. So by terminating his contract, if there’s anything out there can he come back at us with anything?” Malnar asked Wickman, who said she had not reviewed the contract between the county and Graham.

Both Wickman and Williams expressed confusion over Malnar’s statement, questioning what would make the attorney “come back” at the commission.

Though Graham never appeared at a county board of commissioners meeting at any time during his employment with the county, the Portage, Michigan-based attorney has been a controversial figure for the county since before his hire. In addition to being perhaps best known for his defense of Kaleb Franks — one of the of men convicted of conspiracy for plotting to kidnap Governor Gretchen Whitmer — Graham had previously represented family of Former Board Chair Dave Moyle. Moyle, who was removed by recall last fall, said publicly that he had asked Graham to apply for the position but denied having anything other than a professional relationship with him.

Ultimately, the board voted in a 3-2 split vote not to terminate Graham’s contract Tuesday, with Williams and Commissioner Kelli van Ginhoven voting in favor of the termination. Graham’s contract will now be reviewed by Wickman and the issue may be raised again at a future meeting.

The request for documents from Burkhart had a very different root cause. Burkhart had recently sent out a letter to municipalities that he previously represented — which includes the county, Ford River Township and Escanaba Township — indicating his intent to retire. The letter indicated that files would be destroyed by a certain date and that communities who wanted their files should get in touch with his office.

According to Williams, when Escanaba Township reached out to Burkhart’s office they were met with a request for a large copying fee.

“In Escanaba Township, one of the interesting comments by the firm was they were going to charge for copying, and of course it was like, ‘Well, what are you copying because you’re destroying the records, so why is there a copy charge? Why would you copy something you’re going to destroy? Just give us the original document,'” she said. “So that was something that I found odd.”

Burkhart represented the township through a number of controversial issues including a proposed ice racing facility on land owned by Former Delta County Commissioner Bob Barron, modifications to the Mead Rod and Gun Club property, a stand-alone ordinance regulating solar farms in the township, and the controversy that swirled after Burkhart himself said the solar ordinance was not legally sufficient and a new zoning amendment would need to be written. He was replaced by Attorney Laura Genovich in January of 2021.

It has been much longer since Burkhart represented the county. The board of commissioners directed Young to reach out the Burkhart’s office to see how much retrieving the county’s files would cost.