District Attorney Arthur Mallory spoke at the county commission meeting last week against a motion to approve the creation of a Bill Draft Request that would allow County Commissioners to select their own civil counsel, saying the request was, “a situation of the camel getting his nose under the tent.”
The proposed agenda item would authorize county staff to create a BDR that would be submitted to the Nevada Legislature and if passed into law, modify the existing structure that provides for civil deputy District Attorneys to represent the county under the direction of the commissioners. Currently, the DA is elected, and his office appoints a deputy to provide legal service to the commissioners, on behalf of the interests of the county as a whole.
Mallory explained that the existing structure is set up to provide a system of checks and balances, where elected officials are accountable to the people. The DA is responsible for providing legal advice on behalf of the community and for advising commissioners on what the law is and isn’t. “Our job is not policy or programs, just legal, not to agree or disagree with what you want to do,” he said.
“It would be totally improper for the county commission to be choosing someone to perform a function in a different branch of government,” said Mallory. “You are the legislative branch for the county, you pass the law, you are not the justice department for the county, those are separate functions for a reason so that we have checks and balances and you would be eliminating one of those checks that are very basic to our constitutional form of government.” He said he would gladly restructure the selection committee for the civil division to include a county commissioner on the panel and said it is important to work together to do what is right for the community. He also said there are some states that provide for the commission attorney to be elected by the people and that may be an option.
County Manager Jim Barbee said the bill is based on proposed legislation that came before the 2019 and the 2021 legislature and would give the option to commissioners across the state to create their own offices of the civil council, enabling commissioners to be engaged at a more significant level in the selection of civil counsel. He said one reason for the proposal was the conflict that arose during the indigent defense issue from the state Board of Indigent Defense relative to advising on how to set up the public defender’s office. “This would give commissioners more access to the selection process and give a little more authority and ability for commissioners to be at the table.”
The bills proposed in the previous legislatures did not pass and were opposed by the statewide organization of District Attorneys. The Nevada Association of Counties was neutral on the 2019 bill and supported the 2021 bill.
According to the commission agenda, there is no fiscal impact to this proposal. However, Mallory did say by phone interview that his office would still be required to provide a civil department and advise the rest of the county departments including the Division of Child and Family Services, and the county clerk during elections and this action would likely add to the budget costs for a whole new department.
Commissioner Justice Heath asked what the advantage would be of this proposal, “I really don’t see there is one.”
Commission Chairman Pete Olsen said, “The advantage is we would be able to have a counsel of our own choosing. The current situation is we get a counsel thrust upon us, they might be great, they might not be so great. That’s a lot of what’s driving this is our inability at all to have a voice in whom we’re given. We’re told who we’re going to get, and we don’t like it.”
Mallory said, “You do not have a right to your own private attorney provided by the taxpayers. These are all separate functions on purpose so we have checks and balances, and you would be eliminating one of those checks that is very basic to our form of government.”
Barbee reminded commissioners that this was only a request for a BDR to present the issue and just a starting point. “Whatever happens in Carson City will happen through that law-making process, you wouldn’t have authority to create this within the existing statute.”
Mallory said, “The way you stop a problem is you stop it early at the beginning when you know it is a bad idea.”
The item was tabled and will be addressed at the December 21 commission meeting. The next county commission meeting is scheduled for December 21, at 1:15 p.m.
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