The County Attorney serves at the pleasure of the Board of Commissioners, but on Tuesday the commissioners had a discussion about exactly what that means.
Because the county attorney is a contracted employee and charges up to $195 per hour for work, county personnel are given strict guidelines about when and how to consult with his office. County commissioners have more leeway and are allowed to consult with the county attorney about county matters whenever they choose, but District 4 Commissioner J.C. Henderson was unclear as to whether an individual commissioner could direct a county attorney actually to work on a county project.
In December 2008, Henderson asked County Attorney Tommy Craig to set up a 501(c)3 for the Nelson Heights Community Center. From December until April 2009 Attorney James Griffin worked to set up the non-profit organization and accumulated $6,572.50 in legal fees. When Craig’s office sent Chairman Kathy Morgan the bill in 2009, she did not pay it because she could find no record of the BOC ever giving the county approval to work on setting up a non-profit for the NHCC.
At Tuesday’s BOC meeting, Henderson asked for the unpaid attorneys fees to be added to the agenda because he wanted the county to pay that $6,572.50, despite the fact the BOC had not approved the expenditure."We all know that county attorney’s office serves at the pleasure of Board of Commissioners and by serving at the pleasure of the board, if there is a legitimate request from a commissioner for the attorney’s office to do something for their district, it has always been kind of done," Henderson said. "And what has happened here is that this (NHCC 501(c)3) was done, as a request from constituents through me, the commissioner, who asked for this in 2008."
Henderson said that in previous administrations, commissioners have made similar individual requests of the county attorney that have been paid. He brought up the rearrangement of the Washington Street Community Center when the property was transferred from the city to the county in 2000. On Thursday, Henderson said he asked Craig to do the paperwork necessary for that transfer and that no motion was ever brought before the BOC.
According to the county charter: "The board of commissioners shall elect the county attorney by affirmative vote of three of the members of the board, and he shall serve at the pleasure of the board."
District 1 Commissioner Mort Ewing said he did not believe that individual commissioners should be allowed to obligate county money.
"As I understand the charter under which we operate and the powers of individual commissioners, we do not have the authority individually to obligate the board for funds," Ewing said. "I have talked to the county attorney many times about specific issues, but the only request I have ever made was for a legal opinion."
On Wednesday Morgan said that she understood the charter to say that the county attorney served at the pleasure of the entire BOC, not individual commissioners. She said that she understands that the commissioners seek advice from the county attorneys, because that is customary practice. However, as part of her job she questions every bill that is sent to the BOC, and if the bill from the attorney is for something beyond those customary practices, she said it should have board approval. Otherwise, the county attorney could be asked to do anything, which would cost the county a lot of money it doesn’t have, she said.
On Thursday, Craig, who was not at the meeting, said that nearly every commissioner has asked for legal advice and guidance over the years, but some commissioners have also asked for attorneys to work on district projects.
"We have gotten involved in those, and the scope of them has varied a great deal over the years," Craig said. "I think it really relates more to whether or not a general consensus had been developed and built on the board. If everybody is getting along and are unanimous on goals and objectives things like this are not an issue, but where there is dissension on the board things can become out of proportion to their importance.
"I would not normally undertake something of this scope without making sure we had clear authorization," he added.
Craig said he approved the work on the NHCC, because his office had previously set up a 501(c)3 board for Senior Services and so the request for NHCC was not out of the ordinary. There was also a miscommunication, because he thought Griffin had received clear authorization from the board at a meeting where Craig was not present.
Morgan said she had spoken with Craig and Griffin when she discovered that the BOC had not approved the project. At the time Craig agreed to complete the project at no cost, and that all of the previous costs would be paid at a later date by the NHCC Board of Directors when it was set up.
District 5 Commissioner Tim Fleming said that even though the project was not approved by the BOC, he felt strongly that Griffin should be paid for the work he had done.
"I got mixed emotions on this; we‘ve asked county attorney’s office to do quite a bit of work here, $6,572 worth, and now we want to say we’re not going to pay you when everyone at the table and in the administration knew they were doing this work is absurd to me. We’re not going to ask any of our other vendors or contractors (to do that), say we’re not going to pay you."
Fleming said that maybe a policy does need to be created to specify what the commissioners can ask the attorney to do. The BOC tabled the issue until Craig could be brought in to answer some of their questions.
However, Craig said Thursday that the payment point will be moot because he is going to withdraw his request for payment. He said, if necessary, he would have done the attorney work on a project like the NHCC for free anyway, because of its importance to the community.
"We would have done the work anyway; we’re not all about just fees. So when I found out it was a problem (earlier this year), I said don’t worry about it and continued to work on it for free," Craig said. "I don’t intend to ask the board of directors of the NHCC to pay that fee because I don’t think they have any money and because that’s not helpful. Any money that comes into their hands they should spend on their purposes and not on attorney fees."