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Romley v. Arpaio2/19/2002
AFFIRMED
We are asked to decide whether the Maricopa County Sheriff can lawfully eschew the services of the Maricopa County Attorney by directing an administrative employee, who is also a licensed attorney, to represent the Sheriff in proceedings before the Maricopa County Employee Merit System Commission. The Sheriff admits that the legislature has not authorized him to employ counsel in this manner. He contends, however, that the Maricopa County Board of Supervisors possesses such authority and has delegated it to him by ratifying Maricopa County Employee Merit System Rule 10.07, which he claims permits an agency to choose its own counsel in appeals to the Commission.
We agree with the Sheriff that the Board of Supervisors can choose legal counsel to represent an agency or county official in litigation in which they are parties, including Commission appeals. However, we do not interpret Rule 10.07 as authorizing an agency to choose its own legal counsel in Commission appeals. Consequently, we decide that the Board, by ratifying the Commission's procedural rules, did not delegate to agencies the Board's authority to select counsel. We therefore hold that, absent Board approval, the Sheriff cannot retain independent legal counsel or designate an in-house attorney to represent the Sheriff in Commission appeals. Because the Sheriff did not receive such approval in this case, we affirm the trial court's entry of summary judgment in favor of the County Attorney.
FACTUAL AND PROCEDURAL HISTORY
In early July 1999, the Maricopa County Sheriff's office terminated Chris Gerberry's employment, and he appealed that decision to the Maricopa County Employee Merit System Commission. Gerberry additionally asserted a "whistle-blower" claim against the Sheriff's office pursuant to Ariz. Rev. Stat. ("A.R.S.") § 38-532 (1996). Because Gerberry intended to call the Maricopa County Attorney as a witness before the Commission, the County Attorney had a conflict of interest in representing the Sheriff before the Commission in this matter. Consequently, the County Attorney's office selected a private attorney to represent the Sheriff from a list of private counsel that had been approved by the Maricopa County Board of Supervisors.
The Sheriff's office declined to accept the chosen attorney's services, expressing its belief that the County Attorney's office should have no input in choosing counsel in light of its conflict of interest, and further stating that it would direct one of its staff members to represent the Sheriff before the Commission. Thereafter, the Sheriff's office assigned Ronald A. Lebowitz to appear before the Commission as the Sheriff's representative. Although Lebowitz is a licensed attorney, the Sheriff's office employs him in an administrative capacity.
The County Attorney, in response to an inquiry by the Director of the Maricopa County Department of Human Resources, then issued Opinion No. 99-005 on July 22, 1999. The County Attorney concluded, in significant part, that a county officer cannot employ legal counsel to represent a county agency before the Commission because such representation is expressly reserved to the County Attorney by A.R.S. § 11-532(A) (1990). Based on that opinion, the Human Resources Director requested the Commission's hearing officers to recognize only attorneys selected by the County Attorney's office as representatives of the Sheriff in Commission appeals.
In early October 1999, the Sheriff's office requested the hearing officer assigned to the Gerberry appeal to enforce Rule 10.07 and permit Lebowitz to appear in the appeal as the Sheriff's representative rather than as the Sher
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