Judge rejects outside lawyer for OVIC suit

Judge David Frazier last week rejected the request by Whitman County commissioners to hire an outside attorney to defend them against an injunction suit filed by the citizen Organization to Void Illegal Conduct.

Prosecutor Denis Tracy Tuesday said he was ready to act as the county’s counsel, but commissioners said they had already asked the judge to reconsider his decision.

“I don’t think he could represent us fairly,” said Commissioner Greg Partch.

In a letter sent last Thursday, Frazier said the legal questions in the lawsuit did not require expertise beyond that of Tracy, whom commissioners asked to replace with a private attorney.

The suit seeks to stop the county from pursuing its agreement to provide $15 million for infrastructure at Hawkins Companies proposed 714,000-square-foot shopping center on the Whitman County side of the state line.

Commissioners on a 2-0 vote last week decided to have attorney Milton Rowland with the Foster Pepper law firm in Spokane petition the judge to allow him to replace Tracy as the county’s attorney. Commissioner Michael Largent abstained from the vote.

“From my experience with Mr. Tracy, I believe he is more than qualified to handle a case of this nature, and I am not persuaded that the County needs to hire a specialist or to undergo the substantial expense of employing outside counsel to handle this case,” Frazier wrote in his letter.

Frazier noted Rowland’s proposed fee of $300 per hour was $75 to $125 higher than the typical rate charged by attorneys in this area. He added the proposed agreement with Rowland had no overall estimate of the cost of the case.

Rowland in his request to the judge noted Tracy was named in OVIC’s suit and may be called as a witness to testify at trial.

Frazier said Rowland was being “speculative and premature” in assuming Tracy would be called to testify.

Tracy has been an outspoken critic of the commissioners Jan. 3 decisions to increase from $9.1 to $15 million the county’s commitment to building public infrastructure at the Hawkins shopping mall site.

Partch declined to let Tracy see or comment upon the contract before he and Commissioner Pat O’Neill voted to approve it.

Tracy Tuesday said he would be able to put aside his official objection to the agreement in order to defend the suit.

“I have no doubts or hesitation that I can,” he said.

Commissioners, though, were not so sure.

“I already made my statement on the prosecutor,” Commissioner Pat O’Neill said Tuesday.

O’Neill two weeks ago said he did not think Tracy could put aside his personal objections.

Partch said commissioners had already revised their agreement with Rowland and sent the new proposal to Judge Frazier for approval.

Among changes, Partch said they stressed the prosecutor’s outspoken objection to the contract. They also said Rowland has reduced his proposed fee.

“I think we’ll prevail in getting an outside (attorney),” said Partch.

Another point made by Frazier was that some of the charges in the suit could be paid by Hawkins.

OVIC attorney Timothy Esser jumped on that point in a letter he sent to Tracy.

Esser said Hawkins should incur the defense for OVIC’s charges that the company is not a legal contractor in Washington and public money will be spent to improve private property.

If Hawkins did bear those costs, he wrote to Tracy, OVIC would put the charges that Partch and O’Neill held illegal secret meetings about the Hawkins contract “on the back burner,” to save the county from a legal defense.

“My client wishes to save the county money,” he wrote. “Not cost it money.”

Frazier earlier recused himself from hearing the injunction suit, and Judge John Strohmaier of Lincoln County has been appointed to hear the case.

In an e-mail sent Feb. 9 to Gary Petrovich, county administrative director, Frazier explained he has personal friendships with the commissioners and with several people attached to OVIC. Frazier added he has heard and been involved in arguments about the project before the lawsuit was filed.