The Free Press, Mankato, MN

September 13, 2013

Judge says county prosecutors underpaid

By Mark Fischenich

---- — MANKATO — A substantial pay hike and two years of back pay should be coming to the six assistant Blue Earth County attorneys in the next two months after a judge ruled that county commissioners failed to follow state law in setting the prosecutors' pay and have been illegally underpaying them for several years.

"The board's salary determinations for the assistant county attorneys set forth in the 2012 and 2013 budgets for the Blue Earth County Attorney's Office are arbitrary, capricious, oppressive, and in unreasonable disregard for the responsibilities of the Blue Earth County Attorneys Office," District Judge Robert Walker wrote in his ruling this week.

Unless the County Board appeals Walker's decision, the county will have 60 days to set higher salaries for the attorneys and submit them to the Martin County judge. Walker, under state law, couldn't order a specific salary hike for the attorneys but will "verify the board's compliance" after commissioners set new salary levels for the attorneys.

The combined cost of the salary adjustments could easily top $100,000 a year, meaning the board might be faced with a quarter-million dollars or more in back pay for last year and this year for the five full-time and one half-time assistant county attorneys. Among the board's failings was its unwillingness to compare the pay of Blue Earth County prosecutors with those in similarly populated counties with similar levels of crime, Walker wrote.

Veteran assistant county attorneys in those sorts of counties were earning roughly $20,000 to $30,000 more in 2012 compared to the most experienced Blue Earth County assistant attorneys, based on salary data that Walker included as an appendix to his ruling. That's unacceptable and illegal under Minnesota law, according to the ruling.

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

In a relatively rare occurrence, the salary dispute between the board and the attorneys ended up in court because Minnesota law allows elected officials such as sheriffs and county attorneys to appeal budgets for their offices. Blue Earth County Attorney Ross Arneson, after asking the board to boost salaries for his assistants since 2011, filed appeals for both 2012 and 2013.

County Administrator Bob Meyer and all five commissioners — Drew Campbell, Vance Stuehrenberg, Mark Piepho, Will Purvis and Kip Bruender — were served subpoenas by sheriff's deputies requiring them to answer questions under oath at a court hearing in May. Walker determined that their testimony indicated Arneson's complaints were valid.

"We were disappointed, obviously, but we respect the court's decision," said Meyer, who expects the board to seek legal advice before deciding whether to take the case to the Minnesota Court of Appeals.

Assistant County Attorney Chris Rovney handled much of the legal work in the case and was pleased that Walker agreed with the attorneys' positions in virtually every regard.

"The arguments we made from day one have all been supported by the court's decision," Rovney said. "From day one, we just wanted the County Board to follow the law."

State law requires county commissioners, when setting salaries for assistant county attorneys, to examine the duties, responsibilities, qualifications and performance of the attorneys. Court rulings stemming from similar disputes in other counties determined that county commissioners are also required to ensure the salaries are in line with "similarly situated counties" in the state.

Arneson, in discussions and emails with Meyer and the County Board, made clear that state law mandates that the County Board handle assistant county attorney salaries differently than other employees of the county.

"It just simply declined to do so," Walker determined.

Walker, assigned to the case because Blue Earth County judges work regularly with the county attorneys, also determined that "the board had a limited and vague understanding of the duties of assistant county attorneys."

The commissioners relied on its salary consultant — Fox Lawson and Associates — to decide where assistant county attorneys should be placed on the county pay scale based on their job descriptions and supervisory duties. Once on that pay scale, county employee wages increase by preset "steps" for each year of employment. At 10 years and beyond, the steps end and any pay hikes for workers are limited to countywide cost-of-living adjustments provided to all employees (unless they move into a new job that ranks higher on the Fox Lawson pay scale).

"... The board relied on the Fox Lawson classification with little to no independent investigation," Walker wrote. "... The board attempted to outsource its consideration (of state law)."

The board won the argument with county attorneys' union when salary negotiations ended up before an arbitrator, who ruled last year that the attorneys' requested salary too ambitious and that they should receive the same increase as other county workers. But Walker said the results of arbitration conducted under labor law don't excuse the board from following other statutes related to setting salaries of county attorneys.

Commissioners' insistence on holding all employee wage increases to the same COLA "reflects the board's preoccupation with limiting the potential increase in the (property tax) levy," Walker wrote.

Rovney said he understands that many county residents might not see a top salary of nearly $80,000 as unreasonably low. But he points to what other professionals are paid, what his counterparts in the metro area or other regional centers earn, and the amount of debt that many attorneys carry after earning their law degree.

"I'm 47 years old and I still have over $100,000 of debt from law school," he said, suggesting it's not uncommon in the county attorney's office for lawyers to be paying $700 a month on student loans.

Plus, retaining experienced attorneys saves the county money because they can more efficiently and cost-effectively handle hundreds of civil and criminal cases a year, he said. Employee retention would have been a serious problem if the salary appeal had been rejected, Rovney said.

"I would have left," he said. "I would have been looking for a new job."

Morale improved noticeably when Walker's ruling arrived at the Blue Earth County Justice Center, but the assistant county attorneys won't know for a while yet the specific impact of winning the case. The board could appeal the ruling. Even if it doesn't, commissioners might choose to make relatively minor adjustments in salaries in the hopes that Walker won't object if they make some concession.

Rovney said he doesn't expect that.

"The commissioners and administrator, I think, are fundamentally good people," he said. "And I'm confident they'll do the right thing."