McCarthy to Lindquist: Step away from phone-records case

Pierce County Executive Pat McCarthy believes prosecutor Mark Lindquist can’t represent taxpayers and himself at the same time.

Lindquist disagrees.

McCarthy has received an independent legal opinion that says he’s wrong, and she’s prepared to take the argument into court.

The idea, underlined in a Nov. 10 letter from McCarthy to Lindquist, sets the stage for an unprecedented confrontation expected to play out Monday in front of the County Council.

McCarthy’s letter asks the embattled prosecutor to withdraw from representing taxpayers in a long-running case involving text messages on Lindquist’s personal phone. The letter asks Lindquist to appoint Seattle attorney Jessie Harris as a special deputy prosecutor to represent the county going forward.

“As the text messages are on your personal devices, and pertain to certain allegations directly involving you, your continued representation of the County in this case and related matters creates an apparent conflict,” McCarthy’s letter states. “In light of this conflict, I believe independent counsel is urgently needed to fully advise the county regarding all available options. As such, I respectfully request that you cease all action in this matter.”

To date, Lindquist has refused McCarthy’s request. The debate has boiled behind closed doors for a month; last-minute legal moves continued late Friday.

The dispute spilled into County Council chambers last week during an executive session. Lindquist and his senior staffers contend there is no conflict and that McCarthy is exceeding her authority.

McCarthy cites an Oct. 8 legal opinion her office obtained from an outside law firm, originally sought by Mark Maenhout, the county’s risk manager. The opinion says an actual conflict exists and that Lindquist and his subordinates should not represent the county in the phone records case, McCarthy said.

She added that she has made the point to Lindquist personally.

“As I explained to Mr. Lindquist, I firmly believe it is in his interest and the county’s interest to remove this potential conflict of interest and just move forward,” she said Friday. “I’m a little dumbfounded that we can’t get to that place.”

The News Tribune sought comment Friday from Lindquist. He did not respond. An emailed reply came from Dan Hamilton, a senior team leader in the prosecutor’s civil division.

“As detailed in this office’s response to the Executive, there is no conflict of interest under the law in the Nissen cases,” Hamilton wrote.

He added that Lindquist intervened personally in the case reluctantly at first and only “at the urging of the County.” (The urging came from Hamilton, according to his statements in other public records.)

CASE HINGES ON LINDQUIST’S TEXT MESSAGES

The phone-records case stems from a pair of lawsuits filed in 2011 by sheriff’s Deputy Glenda Nissen. She sought disclosure of text messages from Lindquist’s personal phone, believing they would show he retaliated against her in the course of a long-running dispute.

The prosecutor’s office opposed disclosure, arguing that Lindquist’s privacy rights trumped the state’s public records law. To date, the county has paid $315,945 to outside attorneys defending the case, including former Supreme Court Justice Phil Talmadge.

Lindquist also intervened personally, and retained Seattle attorney Stewart Estes to represent him on a pro bono (free) basis. Public records, including the findings of a recent whistleblower investigation, show that all the involved attorneys, including Lindquist and his senior staffers, collaborated on legal briefs submitted to the Washington state Supreme Court.

The high court weighed in Aug. 27, with a ruling rejecting Lindquist’s claim that privacy interests shielded all records on his personal phone. Instead, the court found that the text messages could be public if they pertained to public business.

With that in mind, the ruling prescribed the next steps: It directed Lindquist to obtain a transcript of the text messages, review them, produce any that met the definition of a public record, and hand them over to the county for potential disclosure to Nissen.

If Lindquist believed any of the text messages were personal, the court required him to sign an affidavit saying so and pass it along to the county.

Three months have passed since the high court ruled. Lindquist hasn’t produced the text messages, and he hasn’t submitted an affidavit. McCarthy’s Nov. 10 letter to Lindquist cited those points.

A HISTORY OF CONFLICT ALLEGATIONS

Conflict of interest allegations crop up again and again in the controversies surrounding Lindquist’s office. They appear in multiple investigations and lawsuits alleging official misconduct by Lindquist and his staffers. They’re part of an active investigation by the state bar association and a recently announced investigation by the county’s ethics commission.

The new legal opinion obtained by McCarthy and Maenhout adds weight to the tally. The two officials want to build a legal wall that stops Lindquist from controlling or influencing future legal strategy where his personal interests are concerned.

“I believe that the citizens of Pierce County deserve unbiased outside legal counsel, especially in light of the Supreme Court’s order,” McCarthy said Friday. “We’re prepared to move forward and have a court decide whether there’s a conflict.”

Maenhout, the risk manager, echoed McCarthy’s concerns.

“I’m really the one that went out and sought these outside legal opinions,” he said Friday. “I have no political dog in this fight. I’m just concerned about the county’s interests.”

County council members expect to discuss the matter Monday during an open study session set for 11 a.m., according to council Chairman Dan Roach.

“We’re still trying to wrap our arms around what exactly we’re talking about,” he said.

PUBLIC OR PRIVATE?

The issues present a legal puzzle for the council. Typically, county prosecutors hold authority over legal decisions for county governments — but what happens when a prosecutor is compromised?

Council members face another dilemma: whether to discuss the issue openly or shift into an executive session where the public can’t hear the debate.

Councilman Rick Talbert, who supports McCarthy’s idea of appointing an independent prosecutor, wants a public discussion.

“My position is we need to hire the independent outside attorney, and the prosecutor should comply,” he said Friday. “Nobody has made it clear to me how we convey that message, but we need to move forward with this. What we should be most focused on right now is protecting the taxpayers from any further costs down the road.”

Councilwoman Connie Ladenburg said she’s willing to have a public debate, but she’s not certain the council has to make a formal decision.

“We don’t have to give our stamp of approval,” she said. “This is such a unique situation — I don’t know if it’s ever happened in this regard in the state of Washington.”

Councilman Derek Young said he couldn’t discuss matters related to past executive sessions. He wasn’t sure whether Monday’s debate would require another, but he said he would explain his own decision if matters come to a vote.

“If we get to a point where we’re going to make a decision, I’ll be robust,” he said.

Councilman Doug Richardson couldn’t say whether the debate would be public or private. He said the issue centers on “a difference of opinion about whether a conflict exists or not — that’s what we were discussing and I’m sure we’re going to discuss on Monday.”

Richardson added that the law is clear that the county executive can’t appoint a special prosecutor. Only Lindquist can do that, which means he would have to accept McCarthy’s directive. In theory, the council could vote to order Lindquist to do so, or side with the prosecutor’s position and reject McCarthy, or do nothing at all.

“What we would like to avoid is the county taking itself to court,” Richardson said.

Roach said Monday’s meeting is likely to run in two stages: a public conversation that sets the boundaries of the debate and after that, the actual debate, in public or private.

“We need to narrow down to what exactly we are discussing, hear both sides and say why is it a good thing, why is it a bad thing,” he said. “I almost feel like a judge in this situation.”

A LAST-MINUTE ‘MANEUVER’

A series of late-breaking developments Friday added new twists. Hamilton, the deputy prosecutor who responded to the News Tribune’s request for a comment from Lindquist, said the prosecutor intends to file an affidavit in the phone records case and withdraw from personal involvement.

Hamilton added that Lindquist appointed a special deputy prosecutor to handle remaining developments in the phone-records case, but that prosecutor isn’t Jessie Harris, the attorney requested by McCarthy.

Instead, Lindquist appointed Ramsey Ramerman, an assistant city attorney in Everett. Ramerman has a history with the phone records case. He filed a legal brief in May, headed, “in support of Pierce County and Pierce County Prosecutor Mark Lindquist.”

Lindquist did not consult McCarthy or Maenhout (the risk manager) before making the hire; they learned of the decision late Friday.

McCarthy and her staffers called the move “a maneuver” that didn’t address their concerns about independence or provide the legal wall they’re seeking. They said it didn’t change their plans to move ahead with a court challenge regarding Lindquist’s alleged conflicts of interest.

“We need to have an independent lawyer,” McCarthy said. “This is not anti-Mark Lindquist. This is protection of the county.”

This story was originally published November 21, 2015 at 7:46 AM with the headline "McCarthy to Lindquist: Step away from phone-records case."