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County attorney balks at plan to reshuffle Hernando government

BROOKSVILLE — When County Administrator David Hamilton put out his plan to reshuffle local government last week, he knew there could be some trouble.

The first skirmish has begun.

The County Attorney's Office has just opined in a memo that placing the lawyers under the county administrator, or his designee, would be a conflict of interest, detrimental to the board and prohibited by the Florida Bar Association.

The plan calls for the county attorney, now a stand-alone part of government, to be under a proposed division of administrative services. The county attorney would then answer to whoever directed that division, possibly assistant county administrator Larry Jennings, who has been asked to take on that new role.

While the memo to the County Commission seems to say that Hamilton's plan cannot happen the way it is proposed, Hamilton was not discouraged on Thursday. Rather, he called the memo "an excellent opening argument from the county attorney.''

The question of which master the county attorney serves came up earlier this month when commissioners discussed renewing County Attorney Garth Coller's contract. Assistant county attorney Jon Jouben noted that the attorney cannot work for the administrator and was asked for clarification.

He began working on a formal memo about the issue even before Hamilton released his re-organizational plan.

According to Jouben's memo, the county attorney represents the County Commission and "has a professional obligation to his client, the BOCC (Board of County Commissioners) to exercise independent professional judgment and render candid advice.''

The Florida Bar describes a conflict of interest as taking place when "an attorney's representation of one client would materially limit his representation of another party or the personal interest of the attorney.''

The county attorney's duty to serve the commission would be "impermissibly impaired'' if he worked for the administrator, Jouben wrote.

"The county attorney's continued employment would be contingent upon the pleasure of the county administrator not the BOCC,'' he wrote. "The county attorney would inevitably be pressured, consciously or unconsciously, to render advice pleasing to the county administrator instead of the county attorney's actual client, the BOCC.''

Under Hamilton's proposal, Jouben wrote, the administrator could limit the commission's access to legal advice, suppress legal opinions that contradict his recommendations, order the attorney not to meet with individual commissioners or order the attorney to reveal what is said in private meetings with commissioners.

"In effect, the BOCC would not have the advice of counsel,'' he wrote.

Jouben also contacted the Florida Bar's ethics hotline and was told that there were several opinions that indicated that Hamilton's proposed plan would violate the Florida Bar requirement of a direct relationship between an attorney and client.

"The BOCC must have access to independent counsel and advice,'' Jouben wrote. "An attorney cannot reasonably be expected to give the BOCC candid, objective advice if doing so could lead to his termination by the county administrator for insubordination.

"It asks too much for an attorney to be able to give objective advice to the BOCC without being materially limited by the attorney's own interest in his continued employment.

With the county attorney reporting directly to the commission, the commissioners also benefit from having an alternative perspective to the county administrator from within the county government," Jouben wrote.

Hamilton said he understands the issues as defined by the Florida Bar but that he had not yet seen anything definitive about what the Florida statute allows. He plans to talk to Coller about that.

He also said several Florida counties have similar arrangements to the one that he proposed and he intends to explore that as well.

One possibility could be that the county could sever the ties between Coller and his assistants. If there is a possible conflict of interest, Coller could answer to the commission and the other attorneys could be considered county staff to handle the day-to-day operations ranging from questions about purchasing to human resource issues.

Hamilton was also troubled by the various "dark scenarios'' that Jouben's memo said could take place if the administrator had control over the attorney. He said his re-organizational memo itself outlined how the idea of the change in structure was to bring more communication to the county staff and make things more transparent, not less.

"It's about sharing. It's about moving forward with issues. It's about putting things where they fit,'' he said.

Hamilton said the memo also raises issues, but he has no intention of hiring outside attorneys to figure out what the county can legally do. The point of the reorganization, he noted, was to save money.

"If we were trying to save money by spending money, we'd be off to a dreadful start,'' he said.

Barbara Behrendt can be reached at behrendt@sptimes.com or (352) 848-1434.

County attorney balks at plan to reshuffle Hernando government 10/30/08 [Last modified: Monday, November 3, 2008 7:06pm]
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