Ask Rich: Positive relationships with county attorneys yield positive results

Question: Every time I’ve seen you talk, you recommend that we consult with our county attorney before we make difficult decisions. Why? Our elected officials are some of the most experienced and educated in the state. I have two degrees. Our magistrates get plenty of training, with the more experienced fiscal court members sharing their knowledge with the first termers. Our sheriff and jailer both have more than 20 years of law enforcement experience; our county clerk has been in office since I was in high school and my coroner is second generation and grew up in his family funeral home. What can my county attorney do for me?

Answer: County attorneys may be your county’s greatest risk management tool. Having an engaged county attorney can keep you out of the newspaper, out of court and out of senseless arguments. In 1998, when I interviewed with the Kentucky Department for Local Government, then Deputy Commissioner Tom Graham told me that my job would be to stand between him and the problem.

He would brief me on the issue, ask my opinion, make a decision, and if the decision went south, it would be on me. Tom never blamed me for something in which I had no role, but if he asked me a question, he expected me to stand by my response and take the responsibility that went with being his legal advisor. I was fortunate to have Tom.

While emergencies happened that required immediate answers, more often than not, Tom would brief me in a timely manner that allowed me to do the requisite research. We had a productive give-and-take relationship — the type of relationship that successful county officials have with their county attorney.

 County attorneys have many roles. While the county attorney’s prosecutorial role may be the most visible, from my perspective, the county attorney’s KRS §69.210(3) legal advisory role is the most important. This statutory subsection states in part:

“The county attorney shall give legal advice to the fiscal court … and the several county … government officers in all matters concerning any county … business within their jurisdiction.”

County attorneys want to be involved in the decision-making process. While not the decision-maker, except in matters involving their office, county attorneys can provide perspectives that may not have been considered.

In the best run counties, the county attorney has regular interactions with the county’s other elected officials. In some counties, the county judge has a standing appointment with the county attorney.

I sat in on one of these meetings where the county judge and the county attorney had a wide-ranging conversation on a variety of topics, some brought up by the county judge and some brought up by the county attorney.

In another county, a long-time county judge and county attorney don’t need a standing appointment as they talk to each other multiple times a week. This county attorney not only offers legal advice on issues raised by the county judge, but also offers observations on items of concern that could lead to litigation or other legal problems.

It’s not just county judges who can benefit from a productive county attorney relationship; all county officials can benefit from this type of relationship.

Personnel is one example where the county attorney should be on speed dial. Some county attorneys have limited personnel experience, but if you bring them in, they can research the matter and help guide you.

Sheriffs and jailers in particular could benefit from consulting with their county attorney on disciplinary matters due to their employees’ specific statutory protections.

A sheriff may have to use the KRS 15.520 disciplinary process when investigating, and potentially disciplining, a deputy. This is a highly complex process that if not executed properly could lead to a deputy who deserves to be terminated getting their job back with back pay and damages. KRS 71.060(2) makes deputy jailer terminations ‘for cause’ only. In matters where termination is a potential result, county attorneys can use case law guidance when assisting the jailer in crafting the appropriate disciplinary letter, which may involve a deputy’s limited pre- or post-termination hearing right.

There are numerous ways in which elected officials can benefit from consulting with their county attorney. There are times when elected officials need answers right away. Depending upon the circumstances, and the county attorney’s background, the county attorney may be able to provide a concrete response or may be able to assist you in taking an educated guess at the right response.

However, if you have the time, be like Tom Graham. Let your county attorney know that you have an issue or concern. Give them time to research the matter and let you know the results.

While you are the decision-maker for your office, take your county attorney’s advice, weigh it prior to making your decision, and then ask your county attorney to assist you with your response, or review your response prior to taking action. Remember, your county attorney is not your employee.

They don’t answer to you, but with a solid relationship between you and your county attorney, you can have a successful term in office, one not limited by unnecessary legal distractions.

Call (800) 264-5226 or email me at rich.ornstein@kaco.org if you have questions regarding this or any other matter. And if you have suggestions for other items that you’d like me to cover in County Line, let me know.

Legally Yours,

Rich Ornstein