Update raises questions about OC legal fees

A small update recently to the Oneida County executive committee on the use of outside counsel by the county’s zoning department brought up larger questions about attorneys fees and how the county pays for them — and whether the county’s organization of legal services is efficient.

The background: The Oneida County zoning committee has engaged outside attorney Larry Konopacki for services relating to drafting revisions to the county’s shoreland ordinance — a process that is ongoing — and last week, the zoning department wanted the executive committee to know that an initial allocation of dollars for that purpose might not be enough. Executive committee chairman Billy Fried observed that the executive committee had allocated $10,000, to be paid out of the county’s contingency fund.

Not that the zoning department wanted more money, Fried said, they were just keeping the executive committee informed. 

“Initially they thought they were going to have to come to the county to request additional funds, but my understanding is that they have excess revenues for 2024, which the [zoning] committee is planning on allocating toward additional fees to counsel,” he said. 

Assistant zoning director Todd Troskey confirmed that assessment.

“There was a little, and [zoning director] Karl Jennrich wanted to make sure he dotted his I’s and crossed his T’s to make sure the executive committee was aware of it,” Fried told the committee. 

So they were not requesting funding, just making sure they still had the support of the executive committee to continue in the same direction, Fried said, adding that Jennrich was very sensitive to make sure he was following protocol. 

County clerk Tracy Hartman said the zoning department really didn’t have to come to the committee at all if the money was being shifted within the department budget.

“I think within county code that a department head can make those kinds of adjustments within their budget on their own,” Hartman said. 

Finance director Tina Smigielski said that was correct.

“There’s two things,” Smigielski said. “One is, it would be a line item transfer. That happens often if revenues come in. Usually it’s a grant, so grant revenues come in higher than you thought, so grant expenditures, you do a line item transfer. So this would be using essentially excess revenues within the planning and zoning department as a line item transfer to increase the available funding for those legal fees.”

Smigielski said county board and zoning committee chairman Scott Holewinski had approved such a transfer, even though his approval was not technically required.

“A department head can do that,” she said. “That’s in the code. The only procurement matter could possibly be is if we exceed $25,000 in a year with a particular vendor, that might require some additional approval.”

Still, Smigielski said she believed that, under the corporation counsel section of the code, the zoning committee was able to hire legal counsel under its own authority.

“So I don’t think that there’s any county code that would require this committee to take any kind of action on [the spending], but I think it was just more of an FYI so everyone’s aware of it, that we’re thinking we’re going to be over $10,000 for this particular project that this law firm’s working on,” she said.

No good deed goes unpunished

Not surprisingly, the zoning department’s good-will gesture prompted larger questions about county spending on legal fees.

Supervisor Steven Schreier wanted to know if, when the initial $10,000 expenditure was approved, there was any language requiring executive committee approval to spend beyond $10,000.

Smigielski said that was not the case.

“No, this would be for continuing to next year,” she said. “I think it was a line item transfer not to exceed $10,000 from contingency. That’s happened. This is a line item transfer within planning and zoning within their budget.” 

Schreier suggested the committee might want to make it clear that departments need not come before the committee for things they could carry out on their own.

“I’m just saying I think we should also today establish, is it necessary for department heads or representatives to come to us to ask to do something that’s within their purview to do,” Schreier said. “Can we somehow then let department heads know?”

Hartman clarified that originally the appearance before the committee was not necessarily informational only. 

“The reason this was on the agenda actually was because initially they thought they would need more money from contingency and then in discussing it realized, ‘well we have an overage in our revenue so can we just use that instead,’” she said. “So by the time that was all emailed to me, the agenda had already been put out, so this would not have normally come before you if that conversation had happened before I put the agenda out.”

That put that little fire out, to Schreier’s expressed appreciation, but there was another issue related to the legal fees — the existence of departmental budget line items for legal fees, given the existence of a corporation counsel’s office to handle the county’s legal affairs.

“I mean you normally don’t have a legal fee line item for planning and zoning, do you?” Schreier asked.

Hartman thought it might be included under a line item called ‘professional services’ but Smigielski said, in fact, they had added a legal fee line item to the zoning budget.

Schreier said he had several questions.

“One, I’m just wondering why we are not taking that cost from the corporation counsel’s budget, as they’re supposed to be providing us legal advice on issues,” he said. “And if they can’t provide it, then why aren’t we contracting with whoever through them [the corporation counsel’s office] rather than doing it through various departments.”

Schreier said there could be a ripple effect that would see line items for legal fees created in every department.

“Is this going to be the process for all departments moving forward if they need legal advice that they can’t get from corporation counsel?” he asked. “Are we then going to have to do the same thing for each department and say we need to create a line item for legal fees for you to resolve whatever the issue is?”

Reasons for outside counsel

Smigielski said such line items are set up to address specific situations. For example, there might be a conflict of interest that would preclude the corporation counsel from acting as counsel and so a separate firm might be retained that was not under the direction of the corporation counsel’s office.

Smigielski thought that might have been the case in this instance — it wasn’t, but that situation has occurred in the past. A separate firm might also be needed in situations where specialized legal expertise is required, and Fried and Hartman said that was the case with hiring Konopacki.

“The board of adjustment is always a conflict of interest,” Hartman said. “This one was the attorney was specialized. They wanted this particular attorney because he had knowledge of the law surrounding this ordinance amendment that they were going to be making, so that’s why they came to the administration committee and asked for approval for $10,000 from contingency.”

Fried said the discussion had in fact raised some good broader questions about budgeting, but he wanted to reel in the dialogue because the item before the committee was narrower — communication from the department that it was retaining counsel within the departmental budget. 

“We’ll have Tracy make sure we cross the T’s and dot our I’s that we don’t need anything to communicate to the county board, but it sounds from discussion, and correct me if I’m wrong, that the committee is okay with the communication and the process they’re going through,” he said.

Schreier agreed the larger discussion could be held for the future but he said it was a discussion needing to be had, given a staffing shortage in the county corporation counsel’s office.

“Well I guess where I’m headed with this, or where I think we need to look at this maybe a little further — it could probably be for another meeting — but we know that our corporation counsel’s office is very limited capacity-wise right now, and probably will be for the foreseeable future,” he said. “That being said, the likelihood this is going to potentially transpire, whether it’s specialized counsel or otherwise, they’ve [the corporation counsel’s office] already budgeted for a position that isn’t occupied, and it seems like that would be the ideal place to fund outside counsel.”

In other words, the money that was budgeted for a now-vacant position could be used to pay the legal fees for the outside counsel — using dollars already budgeted for legal services to pay for legal services.

“I guess that’s where I’m going with this,” he said. “I don’t know how the rest of you feel about that and again, it’s maybe it’s not germane to the issue and we should discuss that.”

Schreier suggested the larger issue might be better taken up with the public safety committee.

Fried said he thought it would be appropriate for the discussion to start at the committee of jurisdiction to get a feel for whatever the environment is and, if there is something that needs to come to the executive committee to make sure the county could meet future challenges, that would happen.

In this specific case, the zoning department has always made allowances for legal fees, Fried said.

“My understanding is that we’ve always had some budget number in there because with the board of adjustment or paying a deductible for legal representation on things, they’ve got some money there, but when they have special projects, in my time here they have come to the county board to get some funding for some specialized representation,” he said.

In general

Smigielski explained the overview of funding for legal services in the county.

“Corporation counsel is our in-house corporation counsel, unlike other organizations that might outsource that, like Forest County, so that is our legal department,” she said. “When we have claims — liability claims, work comp claims, et cetera — that’s part of our insurance coverage, so there is outside counsel engaged in that capacity, but then that comes out of the claim costs, so there’s a deductible and then those fees are paid through the claim.”

The county doesn’t usually have a lot of outside counsel, Smigielski said.

“But we’ve hired outside counsel for the Human Service Center,” she said. “That came to the executive committee and that was budgeted for, and then this, but unless Tracy can think of something else specific, we normally don’t have outside counsel.”

Even when the county carries out its collective bargaining, Smigielski said, the county’s corporation counsel participates in that.

One other thing Schreier said he wanted to know was the exact role Konopacki was playing as outside counsel.

“My understanding is, he was more or less hired to help draft language specific to planning documents, comprehensive plans, shoreland specifically,” he said. “I don’t believe that there was any mention that he would serve in any capacity as representing the county, if for whatever reason any of that language is challenged by an agency, DNR or otherwise. Is that correct? He made that clear, I thought, when he took on that role.”

Troskey said that was correct.

“That would only be if it gets to that point where we would need representation to defend any ordinance amendment that went through and that would be a whole separate discussion,” he said.

Schreier said that was something to keep on the radar.

“Because something that we need to have in the back of our minds is, if we are drafting language that we feel potentially may get challenged, how’s that going to be paid for and is corporation counsel going to be able to defend that language, or are we also going to have to seek outside counsel,” he said. “Just so we know, that can get really expensive, really fast, and be dragged out for a long time, especially when you’re talking about a state agency.”

With that, the long informational FYI agenda item came to a close with no action but plenty of questions.

Richard Moore is the author of “Dark State” and may be reached at richardd3d.substack.com.