Judge reverses decision on county attorney hire

Superior Court Judge David Frazier late Tuesday night gave Whitman County commissioners the authority to hire an outside attorney to represent the county in the injunction suit filed over the Hawkins shopping center.

Tuesday’s ruling removes Frazier’s rejection of the lawyer proposal last week.

In his reverse decision, Frazier said the question of Prosecutor Denis Tracy’s ability to objectively defend the county was a “complicated and reasonably debatable issue.”

Commissioners also revised their proposed contract to hire Spokane Attorney Milton Rowland of the Foster Pepper firm to address Frazier’s concerns over the unlimited costs of the first version.

The Organization to Void Illegal Conduct, or OVIC, is asking the court to nullify the county’s agreement to pay for $15 million worth of infrastructure at Hawkins long-proposed 714,000-square-foot shopping center site at the Idaho state line.

Commissioners Greg Partch and Pat O’Neill felt Tracy’s outspoken opposition to the project would compromise his ability to defend the county.

“Denis is a very good prosecutor,” said Partch. “But he’s been very outspoken on his personal views of the project. I think it’s hard for him to represent us when he has voiced such a strong personal opinion against it.”

Frazier Feb. 16 rejected the first request. Among his concerns, he said commissioners had not shown him where Tracy might have a conflict in the suit.

Commissioners asked the judge to reconsider. They pointed out Tracy had spoken against the project in e-mails to other county officials which were later made public.

“We were trying to be polite in not putting too much out there against Denis,” said Partch.

Judge Frazier said he decided extending the Tracy issue would create conflicts among county officials and add to the expense of the trial.

“This would not serve the best interests of Whitman County,” Frazier wrote.

Judge Frazier in his initial denial also expressed concern that the county’s proposed contract with Rowland did not cap expenses and that Rowland’s rate of $300 was well above the market rate.

Rowland’s new contract reduced the rate to $225 per hour. He also will cap the expense at $10,000.

Frazier did order a modification of the new contract before he would give final approval. As currently written, the contract’s $10,000 cap could be lifted by commissioners. Frazier ordered any raise to the cap be approved by the court.

Frazier also said Hawkins should bear the bulk of the costs in defending the suit.

“From my review of the complaint, I view Hawkins as the ‘real party of interest’ and the primary defendant in this lawsuit,” Frazier wrote.

OVIC contends the deal should be nullified because Hawkins is not licensed to act as a contractor in Washington; county money would be paid to build private infrastructure, and commissioners violated the open public meetings act prior to the Jan. 3 approval of the amendment to the development agreement Hawkins signed with the county in 2008.

OVIC’s attorney, Tim Esser of Pullman, in a letter sent to Tracy last week said OVIC would drop the secret meeting segment of its suit if Hawkins paid all legal fees for defending against the other two charges in the OVIC suit.

Judge Frazier said in his letter Tuesday Whitman County’s role in the suit would be secondary with the open meetings factor out and that should minimize defense costs.

“We don’t have (that proposal),” Commissioner Pat O’Neill said about the proposal from Esser which was sent to Tracy. “Let’s see it in writing before we move on anything.”

Partch said Tuesday he would like to “reset the clock” and potentially renegotiate the amendment as new information about public infrastructure is finalized.

“That way, hopefully we could answer some of OVIC’s concerns,” he said.

Public Works Director Mark Storey is closing in on what portions of the shopping center project would be paid by the county.