The Free Press, Mankato, MN

October 20, 2013

County Board may challenge attorney pay

Board members see flaws in law as case is watched statewide

By Mark Fischenich

---- — MANKATO — After finding themselves overwhelmingly on the losing end of a court ruling in September, Blue Earth County commissioners have less than a month to decide one of two possible reactions.

The County Board can focus on how much additional salary to give their assistant county attorneys, hoping it will satisfy a district court judge who ruled that the pay for the attorneys was too low and commissioners had been "arbitrary," "capricious," and "oppressive" in setting the salaries.

Or the board can decide to appeal the decision by Martin County District Judge Robert Walker to the Minnesota Court of Appeals, an option commissioners said they will strongly consider at a closed-door meeting scheduled for Tuesday.

"I felt he was overly one-sided," Board Chairman Drew Campbell said of Walker's ruling that commissioners failed to follow state law in setting the salaries of the six assistant county attorneys and had been underpaying them for years. "... Anybody who understands the English language could look up those words and know the Blue Earth County Board has not been arbitrary and capricious."

In interviews with The Free Press, all five commissioners said they won't make a decision until hearing the advice of County Administrator Bob Meyer and attorney Scott Lepak, the private counsel hired to represent them in the pay appeal. The board needed an outside attorney because the budget appeal was filed by the board's traditional legal counsel — County Attorney Ross Arneson.

Pay up or fight on?

Board members, after winning the salary argument with the county attorneys' union when it went before a labor arbitrator, aren't happy that the attorneys got a rematch via the judicial system.

"We wonder if just philosophically we should file an appeal for making an attempt to take away the local authority in setting these budgets," Campbell said. "The whole law should be appealed in my opinion."

The law in question allows certain elected officials, most notably county attorneys and sheriffs, to appeal budgets set for their offices, including salary levels for their subordinates.

Along with setting up the appeal process, the law — and interpretations of the law by the state appeals court over several decades — require county boards to take extra steps in determining salaries for employees of those offices. The procedures commissioners must follow go well beyond what's required in setting wages for the majority of county workers, including personally examining the duties, responsibilities, qualifications and performance of workers in those offices and making sure that salaries are comparable to "similarly situated counties" in the state.

Walker, after looking at documents filed by each side and hearing testimony in court from the five commissioners and Meyer, ruled that the board consistently failed to meet those standards. Salaries for Blue Earth County's assistant county attorneys top out at just under $80,000 a year, while their counterparts were earning roughly $20,000 to $30,000 more in certain counties that Walker considered "similarly situated."

That, Walker wrote, showed that the commissioners' salary determinations were "arbitrary, capricious, oppressive, and in unreasonable disregard" for the attorneys' duties — and in violation of the law.

"This conclusion is unavoidable given the board's failure to consider relevant comparable county data and impermissible reliance on a flawed classification system," Walker wrote in his Sept. 12 ruling.

If Lepak and Meyer believe that the appeals court would likely reach the same conclusion, Commissioner Vance Stuehrenberg of Mankato would be reluctant to support an appeal — even though he disagrees with Walker's ruling.

"We don't want to throw money away," Stuehrenberg said. "If the attorney doesn't feel we have a chance of winning the appeal, it would really be a waste of taxpayers' money to do so."

The county had already paid Lepak just under $25,000 through the end of June to handle the court hearing and draft the written arguments submitted to Walker, according to Meyer.

Commissioner Mark Piepho of Skyline said the odds of winning before the Court of Appeals is a factor. But he's not inclined to let additional legal costs dissuade him from appealing the ruling, saying that it could cost $100,000 to $250,000 in cumulative pay raises in the county attorney's office to satisfy Walker's order.

"And then you carry it on over the years," Piepho said.

Under scrutiny

Board members also said they are likely to consider the future impact of a pay-off to the county attorneys — and of accepting without challenge what they consider to be a flawed ruling of a bad state law. Would it prompt even more demands in coming years by the Blue Earth County attorneys or, potentially, employees of the sheriff's office? Would it encourage employees in other counties to pursue budget appeals?

"We worry about that as we talk to colleagues in other counties," said Commissioner Kip Bruender. "... They say, 'If this happens (in Blue Earth County), it could open the door.'"

Piepho said the case is definitely being watched across the state.

"AMC (the Association of Minnesota Counties), they're interested in it," Piepho said of the board's pending decision. "And other counties are. It sets such a precedent."

Other board members see value in an appeal because they believe state law needs to be clarified. Commissioner Will Purvis of Vernon Center said the law allowing for salary appeals for a handful of county employees seems to conflict with another state law requiring local governments to have intricate systems in place to ensure that all employees receive equal pay for equal work.

The board largely relied on that system, as administered by St. Paul-based pay consultant Fox Lawson and Associates, in setting salaries for the assistant county attorneys.

"You have conflicting state statutes," Purvis said. "That's the real question for me: which state statute prevails in this?"

Campbell, in contrast, simply believes Walker got it wrong.

The board used numerous processes in attempting to settle on a fair salary structure for the attorneys, according to Campbell, who noted that he personally looked at what other counties paid their assistant attorneys.

And Campbell believes the salary appeal system is set up in a way that puts a county board at a disadvantage. District court judges are often former prosecutors, he said, and they interact on a regular basis with prosecutors in court.

"I think it's a conflict of interest," he said. "Your district judges and county attorneys work closely together."

Weighing pros and cons

Still, Campbell doesn't rule out reluctantly accepting Walker's decision and attempting to adjust salaries in a way that will satisfy his order. Walker gave the board 60 days from his Sept. 12 ruling to file "salary determinations for budget years 2012 and 2013" for the assistant county attorneys and wrote that he will "verify the Board's compliance."

"What we could do instead (of appealing) is undergo a healthy process of review and at the end of the day add some steps," he said, referring to the county pay system that has a certain number of salary "steps" corresponding with years of service. "... I think it's time to add some money for the hard work they do."

Bruender, though, wonders if that will only lead to disgruntlement by remaining county employees. The owner of an Eagle Lake auto repair and body shop, Bruender looks at the basic math: satisfy six assistant county attorneys and potentially end up with "398 that aren't happy."

"It's just frustrating because the system seems to be working," he said of the Fox Lawson salary program.

Before board members discuss their options, ask questions, seek advice and hammer out a consensus on Tuesday, the media and the public will be told to leave the room. State law allows local elected officials to meet in private when they're making decisions about litigation.

Two commissioners said they hope to reach a decision in the closed session and then return to an open meeting to announce their plans and officially vote. The remaining three said they expect that to happen.

"We'll come out and make a vote one way or another," Stuehrenberg predicted. "It's my understanding we'll make a decision Tuesday."