The county board is not feeling comfortable in its relationship with the county attorney. On June 11, 2013, the commissioners discussed their surprise at finding out secondhand that County Attorney Tim Scannell had entered into a contract with attorney Vernon D. Swanum of Duluth for legal services while Assistant County Attorney Molly Hicken is out on parental leave.
According to the contract, Swanum will be paid $120/hour for up to 125 hours ($15,000 total), including travel time, to “provide prosecution services up to 24 hours per week or 40 hours in any twoweek period as requested by the county attorney.” He is considered an independent contractor and is not an employee of the county. The contract states that he “was sworn in as a special assistant Cook County attorney” and that “there are funds available for the purchase of this service.”
Commissioner Sue Hakes wondered if hiring outside help to fill in for the assistant county attorney required board approval. She quoted from Minnesota Statute 388.09, which states in part, “The board may employ an attorney to assist the county attorney, to appear for the county or any county officer in any action in which the county or officer in an official capacity is a party, to advise the board or its members in relation to the action, or in relation to any other matter affecting the interests of the county.
“…The county board with concurrence of the county attorney may enter into agreements with attorneys or firms of attorneys for the prosecution of gross misdemeanors, misdemeanors or petty misdemeanors, without making these attorneys or members of the firms assistant county attorneys or employees of the county where the county attorney has responsibility for the prosecution of these charges.”
“I’m not saying I disagree with the decision,” Commissioner Hakes said. “I just feel like our communication with the county attorney has deteriorated greatly if we don’t even know that he’s hired another employee. …You walk up there and all of a sudden, ‘poof,’ there’s a new person …It just doesn’t feel good.”
Commissioner Garry Gamble said he knew they were going to have to find a way to get Hicken’s work done while she was out on leave, but he believed not being informed of the intention to enter into a contract with outside counsel demonstrated a lack of courtesy and a problem in their relationship with the county attorney. “It is our responsibility to address these things,” he said. “We don’t want it to be a wrestling match, but we don’t want the discomfort to keep us from being responsible for what we’re responsible for. …If he isn’t being held accountable as our legal counsel, then that’s problematic.”
Gamble likened the issue to a recent county board meeting in which Scannell withdrew a request for board approval to purchase several iPads after the board questioned the purchase and asked for a go-ahead from the Information Systems Department. Scannell had told the board that he did not need their approval to purchase the iPads anyway because he had the authority to spend “forfeiture funds,” which would be used to pay for them, as he saw fit. County policy normally requires board approval for purchases above a certain cost threshold.
Commissioner Bruce Martinson said Scannell was buying the iPads one at a time at costs that fell below the threshold.
Circumventing process is just not healthy, Gamble said, and “it’s been demonstrated in public meetings and in private meetings.”
“We could approve the contract, but it doesn’t solve our problem,” Hakes said. “It doesn’t sound like anyone’s questioning whether the hire was a mistake or not. What we’re questioning is the process and what we’re frustrated with is the relationship, and it’s just not acceptable.”
The board decided to ask its Minnesota Counties Intergovernmental Trust attorney, Dyan Ebert, her opinion on whether board involvement was needed to contract out for assistant county attorney services or, alternatively, who would be more appropriate for them to ask since she is advising them regarding a lawsuit Scannell has threatened to pursue against the county in regard to the December 2011 courthouse shooting.
On June 12, County Attorney Scannell told the Cook County News-Herald, “…The board does not have authority to approve a limited term prosecutor, nor do they have authority to seek outside counsel themselves when there is an elected county attorney in position.
“We have to hire attorneys in some capacity at various times related to prosecution, on a limited basis, or rely on the help of other county attorneys (which can be a real burden on other offices) because of the size of our office. I budget for that every year, and there has never been a question about it here in the past.”
Attorney Scannell said the board has no authority over forfeiture dollars, which have been used to purchase the iPads. In regard to his bringing the purchase to the board ahead of time, he said, “In that instance, I was approaching the board purely out of courtesy so they would have some sense of how the office does its work.”
Attorney Scannell said that none of the commissioners had asked him about any of these issues either in writing or in person.
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