By ILSA MINOR

Daily Press

ESCANABA — Prosecutor Lauren Wickman raised concerns Tuesday that the Delta County Board of Commissioners had opened the county up to litigation and were out of compliance with state law following actions taken by the board last month.

“I’m providing this update because I’m highly concern about what occurred on Sept. 19 for a variety of reasons,” Wickman told the board.

The first concern raised by Wickman was the change put forward by Commission Chair Dave Moyle to make Attorney Scott Graham, who was controversially hired in March to represent the county, the primary source of legal counsel for the county violated the state’s County Civil Counsel Law, Act 15 of 1941.

Moyle’s suggestion at the Sept. 19 meeting to change the order that is used by Administrator Ashleigh Young when seeking legal opinions came just two weeks after the commission agreed that Young should consult Wickman first; then the Michigan Municipal Risk Management Authority (MMRMA), which is primarily an insurance provider with on-staff legal counsel; and finally Graham. The change suggested by Moyle and approved in a 3-2 split vote at the Sept. 19 meeting reverses the order, placing Graham first and Wickman last.

Act 15 of 1941 is quite short, taking up only half a printed page and composed of only three sections. However, Wickman said Tuesday that the board was in violation of two sections of the law.

In Section 1 the law says, “The board of supervisors of any county by a majority vote of the members-elect may employ an attorney to represent the county in civil matters, whenever the board determines that the prosecuting attorney is unable to properly represent the county. Such attorney shall receive such compensation as shall be determined by the board of supervisors.” Section 2 goes on to say, “In case the board of supervisors of any such county shall employ an attorney under this act to represent the county in civil matters, the prosecuting attorney of such county shall not act with respect to such matters, unless requested to do so by the board of supervisors.”

According to Wickman, the Graham’s hire meant she was legally unable to weigh in on issues under the act, which has caused confusion for staff.

“The order of counsel has already created confusion where I’ve had department heads and administration reach out with questions that I cannot answer simply because I’m not in a position at that point to be civil counsel. I had the time and I had the opportunity at that time to answer those questions but I was unable to due to that vote,” she said.

Beyond being a source of confusion, case law related to the act requires the county to state on the record the reasoning for the prosecutor being removed from the role of representing the county. Wickman said the county could make these statements on a case-by-case basis or issue a single statement for her office being barred from providing counsel to the county, but without these declarations, the county is in violation of the act.

“I don’t believe there’s anything on the record at this point that says that my office is unable to or unwilling to or incapable of providing representation for this county. So I would like — I would like and the statute requires that you place on the record why we are no longer civil counsel,” she said.

Wickman said if the prosecutor’s office is not going to represent the county, it will not accept a $12,000 planned stipend to pay for its services.

“I don’t feel that’s right to accept money for something we are not doing,” she said.

An agenda item later in the meeting to approve the stipend, which was an increase over the $6,000 stipend paid to the prosecutor’s office last year, was tabled until Wickman could provide the county with more information about Act 15.

Beyond the stipend, Wickman had other financial concerns. She said putting Graham before MMRMA could cost the county a significant portion of its operating budget if the county becomes embroiled in a lawsuit.

“As it stands right now with Mr. Graham being the primary civil counsel when it comes to litigation, should he determine he is going to keep that lawsuit any payment, whether it’s for his fees or any settlement or judgment that comes out fo that lawsuit would not come from MMRMA, it would come out of the general fund for this county. You tack that on to what the counsel fees are going to be for the day to day operations for this county and that number becomes terrifying,” she said, noting that in cases of litigation MMRMA attorneys should always be the first call.

Wickman also expressed her displeasure that the commission moved forward with changes to its rules of procedure with regards to removing unruly audience members at the Sept. 19 meeting — changes that were written by Graham at Moyle’s request prior to Graham being made the county’s primary legal counsel.

Changing the rules was, according to Wickman, problematic for a number of reasons. First, the county’s own rules require that changes to the rules be presented to all of the commissioners in writing 10 days prior to the meeting where the change is considered, which did not happen. Second, Graham being involved in the change at the request of an individual commissioner member and without being the county’s primary counsel, violated other county rules.

“There needs to be some transparency of what is being discussed with counsel to the extent that it can be done so, but when there are decisions and things that are going to be paid to be having opinions done, that needs to be something that’s voted on by this board as a whole unless it comes down to the day to day operations of this county,” said Wickman.

Wickman was also unhappy that the discussion happened at a meeting she was not at and that her own proposal was not considered or presented.

“A meeting was cancelled and I was promised — promised — that because I was not going to be able to be here on the 19th it would not be discussed, and yet it was discussed. It was passed. And I believe it puts this county in a highly vulnerable position for litigation,” she said.