CORUNNA — In a surprise reversal, Shiawassee County Commissioner John Plowman added a proposal to retain attorney Ryan Painter as corporate counsel for local matters a day after it was tabled for a month — and the board then approved the proposal in a 6-1 vote.
Commissioners voted 4-3 Wednesday during their Committee of the Whole meeting to table the proposal until December, with Plowman, R-District 7, citing a need for further discussion with the county prosecutor’s office after receiving public comment from area residents and a formal opinion from Prosecutor Scott Koerner.
Plowman changed course Thursday, however, motioning to place the item back on the agenda for discussion during the Finance and Administration Committee portion of the Shiawassee County Board meeting. The motion to resume discussion was approved 6-1, with Commissioner Marlene Webster, R-District 1, dissenting.
The measure to retain Painter as corporate counsel was subsequently approved a few minutes later, 6-1, but not before a heated exchange between Webster and Board Chairman Jeremy Root, R-District 5.
Webster claimed the board violated procedure by adding the agenda item concerning Painter’s contract in the middle of the meeting, noting the proposal was not on the agenda approved at the start of the meeting.
“We have organization and rules and procedures that we adopt, that we abide by, that we’re all privy to,” Root said. “We all know how this board operates.”
“Yeah, we do know how this board operates, that’s sneaky and not honest,” Webster replied.
Root pounded his gavel.
“Enough,” he exclaimed. “This thing is a sham and it’s a joke. You guys trounced people in here because you knew what Mr. Painter’s contract is and then you think you’re going to have it out there to bid so that people can undercut someone? That’s not how you do professional business, it’s embarrassing that you would do that.”
“It is how you do professional business,” Webster said. “You don’t hire your friends.”
“You went around the back of the board,” Root continued. “You don’t go to the prosecutor around the back of the rest of the board of commissioners and (the prosecutor) should have contacted the county coordinator or the board chair to see what the opinion was that was coming before us, and then he gave the opinion, a confidential opinion that we needed for us, to the public, so it is not a document that is not subject to FOIA. He gave the opinion in the meeting and it is now a public document that has been provided in front of the public in an open meeting, so it is a document that can be FOIA’ed by anyone in this room or anyone watching.
“(Koerner) is not our legal counsel … We’re done, roll call vote,” he said.
The county currently employs Cohl, Stoker & Toskey, a municipal, corporate and labor firm based in Lansing, to deal with local matters (primarily zoning and human resource issues), though no retainer is in place, according to Root.
Several commissioners referred to issues with delays and overall responsiveness of the firm as reasons to look elsewhere.
“The difference (with this agreement with Painter) is it’ll be a guarantee, you know, you’ll have a retainer and you’ll have someone that’s responsive to Shiawassee County when we need answers,” Root said during Monday’s Finance and Administration Committee meeting. “We’re not breaking any engagement with Toskey because we don’t have one, we pay no retainer.”
Painter, an Owosso native, previously worked in the Shiawassee County Prosecutor’s Office under now-retired Prosecutor Deana Finnegan. He also served as a deputy prosecuting attorney in Indiana, and currently is the elder justice resource prosecutor for the Prosecuting Attorneys Association of Michigan, according to the group’s website.
During Wednesday’s Committee of the Whole meeting, retired 35th Circuit Court Judge Gerald D. Lostracco questioned why corporation counsel was being “farmed out” to outside attorneys, since the county prosecutor’s office has previously handled those matters, including during his tenure as prosecutor, from 1974 to 1980.
“I think over the years a lot of things that should’ve been done and given to corporation counsel have been outsourced automatically, other departments have just called on Bonnie Toskey’s firm and so you have those expenses,” Lostracco said Wednesday, adding that legal expenses incurred by the drain office would be an exception, given that drain issues often require a great deal of specific legal expertise surrounding the drain code.
“I think that if you’re looking at expenses, the office of the prosecuting attorney, which has competent attorneys, starting with the prosecutor himself, can do the work in a lot of cases. In some things (like drain issues), no. You do have to outsource some of those things,” Lostracco said.
Koerner noted Wednesday that, since that contract was for $50,000 or more, it should have gone out for bids, per county policy. There are a number of exceptions to the rule, he said, including sole source of procurement.
“However, for that, there has to be one source which doesn’t apply here because, as Mrs. Webster said, there are many attorneys,” Koerner said Wednesday. “The second (exception) would be an emergency; third, if there was a specific authorization we could do that, but to my knowledge there is not a specific authorization.”
“I would argue there is a specific authorization made by the board chair who did engage in the contract negotiations,” County Coordinator Brian Boggs responded Wednesday, adding that, according to Michigan case law, the “board of county commissioners may, at their discretion, select whether or not the prosecutor serves as corporate counsel or not.
“It is not required that they do so, but that is an option that is given to you,” he said.
According to Boggs, since 2015, the county paid Toskey about $333,500, or roughly $66,700 per year.
Webster challenged the numbers Thursday, noting the yearly average is closer to $55,600 per year, since it’s a six-year time span. Painter’s retainer, meanwhile, is for 50 hours per month at $170 per hour — roughly $102,000 per year.
“I think Bonnie Toskey is one of the best county law attorneys in the state of Michigan,” Webster said Thursday. “She is the attorney for the Michigan Association of Counties, so sometimes we’re going to need her. Sometimes we’re going to need local counsel who can be at our meetings, review agendas, whatever we need local counsel to do … I think to sign a contract with one local person that is $102,000 (per year) is financially irresponsible. If you want to hire a local attorney who has municipal experience at an hourly rate for the hourly work you need, that’s fine, but to sign a contract that is 50 hours of work a month for $102,000 and the option to charge $200 for somebody who does not have municipal experience versus what we are paying to someone who is a state expert is irresponsible.”
“Times have changed,” Commissioner Dan McMaster, R-District 2, said. “Times have changed drastically. Yes, we could probably rely on our prosecutor’s office for some stuff and I don’t mean any disrespect to Mrs. Finnegan or Mr. Colbry, but if you go back and you look over past history, there’s been legal advice that’s been given from the prosecutor’s office that has placed us into lawsuits, local lawsuits, federal lawsuits, over adult entertainment facilities, over political appointments, the list goes on and on. … I just think it’s in the best interest that we have dedicated counsel from outside, but also I believe we should rely on our county prosecutor’s office for some work as well.
Commissioner Cindy Garber, R-District 6, agreed with McMaster, adding that outside counsel will be well worth the cost.
“As a person with a finance background, I don’t think the lowest price is always the best way to go,” Garber said. “If I’m looking for a doctor or I’m looking for a plumber or I’m looking for a cancer center, I’m not always going to go with the lowest price. Sometimes you get what you pay for, and I think in the last couple years we have gotten what we’ve paid for. I’d like to get a little better for this county.”