Pierce County Council members, citing “the swirling maelstrom” surrounding Prosecutor Mark Lindquist’s office, might be backing away from a proposal that would tag taxpayers with an unlimited bill for the cost of defending legal complaints against Lindquist and six of his staff members.
Supporters say the proposal would simply adjust an ordinance passed in 1991 and bring it line with 21st-century standards. Critics called the proposal a “blank check” for Lindquist, coming on the heels of a blistering whistleblower investigator’s report released last week.
The report cited ethical lapses in Lindquist’s administration and a politicized office marked by retaliation and intimidation of employees and critics. Lindquist’s office also faces multiple lawsuits tied to some of those circumstances. Meanwhile, an active recall campaign seeks to remove him from office.
“I just want to say the timing of this ordinance is unfortunate,” Councilwoman Joyce McDonald said Monday during a meeting of the council’s Rules and Operations Committee.
The proposed ordinance is tied to the costs of defending complaints against county attorneys filed with the Washington State Bar Association, the entity that licenses all lawyers in the state, private and public, and enforces rules of professional conduct.
Lindquist and six deputy prosecutors face a bar complaint filed in June by deputy prosecutor Steve Merrival, the longest-serving employee of the agency. Defense attorney John Cain and retired sheriff’s deputy Mike Ames also signed the complaint, which is under active investigation.
If bar complaints are upheld, consequences range from mild reprimands to suspension and disbarment. The Washington state Supreme Court is the final arbiter of those decisions.
Under an ordinance passed in 1991, county attorneys receive a kind of insurance (indemnification) from taxpayers to defend against bar complaints. The ordinance caps the costs at $15,000 per complaint, with a lifetime cap of $45,000.
The proposal under consideration by the council, sponsored by councilmen Dan Roach and Doug Richardson, would eliminate that cap, raising the theoretical prospect of unlimited legal bills paid by taxpayers.
Both members hinted that they’re likely to consider revisions to a final version.
A subtler provision of the proposed ordinance would give Lindquist sole authority to decide whether a county attorney’s actions leading to a complaint were made in good faith, thus allowing taxpayers to pay for the defense.
That idea worries defense attorneys, including Michael Kawamura, who heads the county’s Department of Assigned Counsel, which provides public defense.
“I see a potential for conflict if it’s the prosecutor,” Kawamura said.
Speakers at Monday’s hearing questioned the timing and the wisdom of the proposed ordinance, and the apparent benefit to Lindquist and his staff.
“I find it incredible that they’re here today asking for an unlimited check to pay for their attorney costs,” Merrival told the council.
Deputy prosecutor Scott Peters, president of the local prosecutors union, is the original source of the proposed ordinance. Peters wrote a letter to council members in July, seeking removal of the cap, arguing that other counties have no such restrictions.
On Monday, Peters told council members that the proposal was discussed by union leaders and reiterated that changing the ordinance would simply bring the county “in line” with other counties.
“Cost of living has increased (since 1991),” Peters said. “Obviously the costs of attorneys have increased — so all of these would need to change.”
Merrival told the council Peters was wrongly implying the union supported the ordinance.
“It’s disingenuous and misleading for Mr. Peters to suggest that he’s acting on behalf of the guild because he’s not,” Merrival said.
Another deputy prosecutor, Ray O’Dell, echoed Merrival. Union leaders discussed the idea, O’Dell said — but not much more.
“While they did agree that the executive board would support lifting the cap, no one agreed that (Peters) would write a letter — we didn’t hear about this at all until last week,” O’Dell said. “There was no meeting with the guild body. There was no discussion with the guild body. There was no vote of the guild body.”
Bar complaints are an occupational hazard for prosecutors and public defenders. Most complaints, typically filed by unhappy defendants and clients, go nowhere and lead to limited expenses.
That’s been true in Pierce County as well. In the past 10 years, no county prosecutor has come close to reaching the $15,000 limit, according to Al Rose, legal adviser to county Executive Pat McCarthy.
Rose consulted with county risk manager Mark Maenhout to check the historical figures. He said the county has paid for bar complaint defense costs three times in the last decade, but those bills never approached the cap.
“It never got to the $15,000,” Rose told council members Monday. “It never reached that level.”
Rose also said that it’s not clear that other counties have no cap. He cited the state attorney general’s office, where decisions about bar defense costs are made on a case-by-case basis.
The controversy surrounding Lindquist has changed the debate. The News Tribune filed a records request last week seeking billing records linked to defense costs for Lindquist and the six deputy prosecutors named in the bar complaint. The request is in process.
The News Tribune has learned that Lindquist and the six attorneys named in the complaint all have hired private law firms to defend them.
If each attorney’s costs hit the existing cap, the total cost to taxpayers would reach $105,000. A statement Monday from Lori Kooiman, one of the deputy prosecutors named in the bar complaint, suggests the costs could be higher if the council lifts the lid.
The bar complaint accuses Kooiman of withholding evidence and misleading the court in a long-running criminal case dismissed earlier this year due to prosecutorial vindictiveness. Other prosecutors, including Lindquist, face similar allegations tied to the same case.
Kooiman told council members Monday that she has hired an attorney to defend against the bar complaint, and that her legal fees have already exceeded the cap.
“I am now faced with what is estimated to be close to $100,000 in legal fees,” she said. “I am over the cap.”
Kooiman asked council members to lift the cap, saying she has “worked in good faith” in her 15 years as a prosecutor. She cited the financial stress on her family.
If the estimate described by Kooiman applies to all the prosecutors under scrutiny, the legal bills could reach $700,000. Taxpayers would foot the entire bill if the existing cap is removed.
Council members, hearing the heated testimony, said that raising the cap to more modern levels was a sensible idea, but they shied away from eliminating it entirely and questioned whether Lindquist should have sole authority, especially over matters involving his own conduct.
McDonald and Councilwoman Connie Ladenburg suggested they would offer amendments to address both points in the next two days. Both envisioned a committee to address bar complaints, possibly helmed by Lindquist, the county’s risk manager and Kawamura.
Councilman Richardson referred to “the swirling maelstrom” engulfing Lindquist, and said it was important to distinguish between the prosecutor and his employees as the council considers revisions.
As the hearing closed Monday, the rules committee moved the ordinance forward to the full council without a recommendation, setting the stage for likely amendments. It’s scheduled for consideration at 5:30 p.m. Wednesday, when the council meets at the Tacoma campus of The Evergreen State College at 1210 Sixth Avenue.
“Timing is everything, isn’t it?” Roach said. “Under normal times, this particular piece of legislation would probably be no problem. However we’re not in normal times. There is a large cloud over the prosecutor’s office right now. We do need to have some scrutiny on this.”