Romley v. Daughton – 10/28/2010

November 4, 2010

Arizona Court of Appeals Division One Holds That County Board of Supervisors May Divest the County Attorney of Authority to Represent the County in Civil Litigation Because of Conflicts of Interests or Strategic Disagreements, but Only on a Case-by-Case Basis.

The Maricopa County Board of Supervisors hired a private law firm to evaluate whether the County Attorney had a conflict of interests in representing the Board.  On advice from the private firm, the Board approved a motion to “take back its authority to direct and control the prosecution, defense and compromise of all civil legal actions to which the County is a party or has an interest.”  The Board then created two new county departments, outside the purview of the County Attorney, to represent the County in new civil legal matters except for property tax cases.

The County Attorney filed an action seeking a declaration that (1) the Board lacks authority to hire outside legal counsel to represent the County, or for advice as to whether the County Attorney has a conflict of interests in representing the Board, (2) only the County Attorney may determine if it has a conflict of interests and, if a conflict exists, the County Attorney and not the Board has the authority to appoint alternative counsel.  The action also sought to enjoin the Board from hiring legal counsel to represent the County without the consent of the County Attorney and from “accessing, reviewing or reassigning” pending civil actions involving the County Attorney.  The Board filed an answer and counterclaim, seeking a declaration that the County Attorney had conflicts of interest that rendered him “unavailable and incapable of acting as attorney” for the County, thus permitting the appointment of alternative counsel.

The parties filed motions for summary judgment.  The trial court granted the Board’s motion and denied the County Attorney’s motion.  The trial court found that the Board’s actions were appropriate because of a conflict of interests by the County Attorney.  It stated, however, that the County Attorney’s office should normally represent the County absent a conflict.

The County Attorney filed a special action for review of the trial court’s ruling.  The Court of Appeals accepted jurisdiction and granted relief in part.

The County Attorney, by statute, shall “[a]ct as the legal advisor to the board of supervisors” and, “[w]hen required, give a written opinion to county officers on matters relating to the duties of their offices.”  A.R.S. §§ 11-532(A).  If, however, a county attorney refuses to act, is incapable of acting, or is unavailable for some other reason, a county board may hire outside counsel to assist it.  Bd. of Supervisors of Maricopa County v. Woodall, 120 Ariz. 379, 381-82, 586 P.2d 628, 630-31 (1978).     

A conflict of interests is sufficient to render a public attorney “unavailable.”  In such cases, the Board may retain outside counsel to advise the Board and bring legal action to determine whether a conflict exists.  But neither the Board nor the County Attorney has sole discretion to decide whether a conflict exists.  Rather, the Board and the County Attorney should first attempt cooperatively to determine whether a conflict exists, should seek advice from the Attorney General if necessary, and should seek a judicial declaratory judgment only as a “last resort.”

The County Attorney also has a duty and authority to represent the county in civil litigation.  A.R.S. § 11-532(A).  But that authority is not unlimited.  The Board has final authority to “[d]irect and control the prosecution and defense of all actions to which the county is a party, and compromise them.”  A.S. § 11-251(14).  Because the Board has this final authority, it may in its discretion hire outside legal counsel in cases in which there is a “lack of harmony” with the County Attorney as to legal strategy.  Pima County v. Grossetta, 54 Ariz. 530, 540, 97 P.2d 538, 542 (1939). 

The Board may not, however, divest the County Attorney of his duty and authority to represent the county in civil litigation on a “wholesale basis.”  Instead, the Board may retain outside counsel only when the County Attorney is unavailable, such as when a conflict of interests exists, or when there is a “lack of harmony” between the Board and the County Attorney regarding the legal strategy of a particular matter.  The Board has sole discretion to determine when such a “lack of harmony” exists, and that decision is not subject to judicial review.

The Court remanded to the trial court for further proceedings, including any necessary fact-finding to determine the matters in which the County Attorney has a conflict of interests.

Presiding Judge Gemmill wrote the opinion; Judges Thompson and Johnsen concurred.