Power County Prosecuting Attorney Randy Kline is prepared to file litigation against the county commissioners because they have contracted with a civil attorney, Doug Balfour, to handle planning and zoning issues. Kline feels he has the legal right to handle the planning and zoning issues for the county.
The commissioners feel the prosecutor’s office is too busy to handle the additional duties of the planning and zoning litigation. Past prosecuting attorneys have tried to handle the duties, the commissioners said, but they were unable to handle the additional demands of planning and zoning.
“I fully well believe I can handle the planning and zoning component. And if they fund my office to the extent they have funded their civil attorney, I can then retain a deputy to do the work and alleviate my scheduling conflicts,” Kline said.
Kline has set no timeline for filing the litigation, and said he will reevaluate the issue in a few weeks if there has been no change in the commissioner’s stand.
Balfour has been working closely with the commissioners lately on the routing of electrical transmission lines, at least four of which are scheduled for Power County. When asked if changing attorneys in the midst of the current legal climate could damage the county, Kline pointed out the 28 years of land use experience would be beneficial.
He holds a degree in planning and public administration and has dealt with planning and zoning issues for years, he said, including serving as the attorney for the city of American Falls. While working on the American Falls comprehensive plan, he made sure the plan acknowledged other laws regulating power corridors. According to Kline, the county comprehensive plan had to be amended to recognize other laws regulating power corridors.
The commissioners’ solution to Kline’s legal concerns was for Kline to deputize Balfour. While Kline said he had nothing personal against Balfour, he did not think deputizing the commissioners’ attorney would satisfy the potential legal problems facing the commissioners.
Kline’s legal argument against the commissioners is based on two Idaho Attorney General opinions supported by cases appearing before the Idaho Supreme Court. The first opinion was written in 1983. In it, Jim Jones, the Attorney General at that time, outlines the inability of commissioners to create officers outside of that allowed by state law.
However, the opinion recognizes the ability of commissioners to hire employees to fulfill county business. Whether the person hired is an officer or an employee must be decided on a case-by-case basis in court. A case dating back to 1894 created the precedent for the way the law has been interpreted. In the ruling, a county had contracted a private attorney for a fixed term to argue prosecution and proceedings before grand juries. The Idaho Supreme Court ruled that the position was an office, and not allowed by law. Kline feels he can argue successfully that the position created by the commissioners for Balfour makes him an officer, not an employee.
The other Attorney General opinion is clearer about the issue. It was written in 1993 by Larry Echohawk. The opinion asks “Do county commissioners have the ability to retain civil counsel outside the county prosecutor’s office on a long-term or continuous basis?” to which the response is “Pursuant to the Idaho Constitution, statutes and case law, county commissioners do not have the authority to hire civil counsel outside of the county prosecutor’s office on a long-term or continuous basis unless they comply with Idaho’s constitutionally mandated standard of ‘necessity.’”
According to the opinion, commissioners must state clearly the necessity of hiring counsel before they perform the actual hiring. “Mere confidence level or convenience does not rise to the level of ‘necessary’ in this context,” the opinion states.