*1 COUNTY SHERIFF v WAYNE COUNTY OF BOARD WAYNE COMMISSIONERS 14, 1992, July Docket No. 132846. Submitted at Detroit. Decided 2, 1992, November at 9:00 a.m. Wayne County brought The an action in the .Sheriff against Wayne County Circuit Court Board of Commission- ers, seeking attorney to recover fees he incurred as a result of employing against petitions by outside counsel to defend Wayne County Wayne County Executive and various Jail in- seeking appointment mates of a receiver for the executive, county Jail. The and the board summary disposition regarding each filed motions liability attorney court,, board’s for the fees. The Richard C. Kaufman, J., granted summary disposition the defendants with regard August to fees incurred before and after 7, 1988, granted plaintiff summary disposition October and regard to fees incurred between authorizing October while a resolution the board effect, ordering pay only outside counsel was in the board to plaintiff appealed. those fees. The Appeals

The Court of held: obligated, pursuant 1. The board of commissioners was 49.73; 5.826, legal MCL MSA sheriff with counsel against receivership proceeding. to defend The statute does require not the retention of outside counsel. granting summary disposition 2. The trial court erred Questions regarding the defendants. of fact exist whether a county conflict of interest remained after the executive with- appointment drew his of a receiver that would ethically render the unable to whether, receivership litigation, the sheriff in the if a remained, attorney employed conflict of interest who was exclusively the sheriff had the time necessary adequately and the staff References 2d, Countiesj Municipal Corporations, Am Jur and Other Political Subdivisions §§ ALR See Index under Counties. Wayne Co Bd without the assistance of the counsel’s grant administrative staff. The must reversed and the case remanded to the trial these court issues. determination remand, if it is determined that who was *2 employed by county represent exclusively the to the sheriff was represent adequately August not able to the sheriff between August the trial must consider whether court also exigent the sheriff circumstances existed that would excuse authorization, obtaining required by a from board’s ordinance, county retaining before outside counsel. jury 3. The sheriff is not entitled to a trial to determine the 49.73; attorney reasonableness of the fees incurred. MCL MSA provides attorney’s compensation 5.826 that the is to be deter- mined the board of commissioners. adopted by on The resolution the board of commissioners 6, 1988, revoking approval October of fees to the counsel, upon sheriffs outside conditioned the chairman’s receipt stating of a letter from the that his represent adopted office could in violation was not 4.1800(11) Act, Open Meetings seq.’, of the MCL 15.261 et MSA seq. et granting summary disposition 5. The order for the defendants periods August 15 to and after October 7, 1988, is reversed. Reversed and remanded. Fitzgerald, P.J., dissenting part, stated that there is no dispute regarding ability attorney factual who of the employed by county represent exclusively the sheriff to represent receivership proceeding. the sheriff in the The full- employment satisfy time of in-house counsel does not statutory duty board’s counsel where the board employ given decides not to in-house counsel in a case. The employment employed by county who was exclusively as in-house counsel is irrele- duty vant to the determination whether the board satisfied its to defend. Against County — — 1. Counties Civil Suits Officials Board of Duty Legal — Commissioners to Provide Counsel. county employ A board of outside counsel to commissioners must in a elected officer named as defendant involving duty civil matter an official act or of the office county prosecuting attorney defendant official where the or official; outside counsel is unable to compensation as determined counsel is entitled to reasonable 5.826). (MCL49.73; by the board of commissioners MSA op Exigent — — of Outside Counsel 2. Public Officers Retention Circumstances. may acting capacity retain official officials in their Public governing body permission if the local counsel without circumstances; exigent justified by whether the retention is question the finder of fact. is a such circumstances exist Dahling (by Longley Bodman, & Theodore Raimi), Souris, Roach, N. A. and Charles Thomas Wayne County Sheriff. Corporation Counsel, Green, and Sharon A. Saul Kennedy, Counsel, for A. Assistant Wayne County Board of Commissioners. P.J., and Hood and Before: Reilly, Fitzgerald, JJ. regarding dispute J. This case involves a Reilly, request Robert Ficano’s *3 Wayne County for Board of Commissioners

the defending fees incurred of appoint against petition a a receiver the the by County petition Wayne filed The was Jail. County Wayne McNamara, Executive, in a Edward prisoners brought by Wayne action Circuit Court against Wayne County Executive, the in 1971 chairman sioners, seeking County Wayne of Board Commis- jail administrator improve jail conditions. petitioned to relieve McNamara court responsibilities jail and have Sheriff Ficano of his August appointed jail receiver of the on himself hearing The on the motion was scheduled separate August 29, 1988. In letters dated Wayne County August Prosecuting Attorney 17, 1988, 16 and both the County Cor- poration that their Counsel advised represent him to defend would be unable to offices against August receivership petition. On Bd Co Sheriff sought authorization from the board Ficano legal counsel to of commissioners to retain outside day, represent his interests. same Ficano On the objected retained outside counsel. McNamara arguing request counsel, for outside to the to the Ange- counsel, board that Ficano’s in-house Adam receivership las, proceeding. should board,

On approved request tentatively resolution, Ficano’s for use of outside proceeding.1 counsel in the undisputed It is the board re- argument jected McNamara’s when it authorized counsel, but the record does not indicate doing its reasons for so. September 1, 1988,

On the inmates filed their petition requesting independent own that an re- appointed. September 13, 1988, ceiver be Mc- formally ap- Namara pointed withdrew his to be However, withdrawal,

receiver. after his ap- McNamara filed court documents and made pearances through arguing counsel, that should appoint receiver, the court decide to a he was the logical choice. passed

On October the commissioners revoking approval pay- resolution, second their provided appointment panel The resolution of a mediation jail parties evaluate dispute. conditions meet with the to resolve the panel given twenty-eight days accomplish The assignment. The resolution concluded as follows: Resolved, go directed to into

Wayne County request postponement Circuit Court to of all hearings regarding the central administration of the Jail Peti- day tion Executive until the end of the *4 and, period mediation be it further Resolved, expenditures that no for outside counsel will be party day period any 28 made until after the progresses and/or unless suit; approved, pending outside counsel is review, day period finally outcome of the 28 and be it Resolved, Board, with the advice of Chairman Commissioners, appoint than the September this Mediation Panel no later 8, 1988. legal counsel, outside to Ficano’s

ment of fees receipt upon aof their chairman’s conditioned office that his from the letter - nothing Again, in the Ficano. could to the availabil- refers or in the record resolution ity Angelas receivership proceedings. 7, 1988, the On October chairman, Arthur counsel sent stating McNamara that because Carter, a letter appointed re- to be his had withdrawn representa- lawfully provide ceiver, he could Nevertheless, continued Ficano tion to sheriff. him in counsel to to retain receivership proceeding. invoice to 1988, Ficano submitted In late fees of commissioners board September 30, period 15, 1988, to legislative the invoice to referred The board tribunal, authorizing adopted a resolution which However, refused in full. board except pay $3,457.25 in counsel’s the invoice expenses. out-of-pocket granted February 16, 1989, the trial court naming receivership, McNamara

the motion for appealed a motion and filed the receiver. stay, Court, this denied which was McDon JJ., Jr., on ald, P.J., and Murphy, Holbrook, 115672). (Docket Supreme Our No. March stayed order on reversed, Court expedi this Court’s and ordered March Wayne hearing Co the case. decision of tious Wayne Executive Officer Co Chief Jail Inmates v Cynar, P.J., Court, This #2, Marilyn held, JJ., then and Wahls Kelly, proper. receivership order was alia, inter Execu- Co Chief Co Jail Inmates *5 Bd Co Sheriff Opinion of the Court App Officer, NW2d 178 Mich tive 634; again stayed Supreme the re- Court Our August ceivership 15, in an order dated order appeal application for leave while 1989, November 30, On under' consideration. remained judgment parties into a consent Ficano entered 1989, jointly agreed whereby McNamara and Operations, appoint Jail as Director of Peter Wilson budget report on all to McNamara who would security and on all and to Ficano matters operational February the the 21, 1990, matters. On dismissing Supreme appeal pursuant an order Court entered judgment. to the consent entry the consent June before 1989, On 21, against judgment, action commenced this Ficano Commissioners, seek Board of the ing attorney fees excess $400,000, to recover defending against allegedly him in incurred receivership. February petition for intervening motion filed a McNamara defendant disposition summary of the board’s of the issue for liability attorney 1990, In March fees. May 8, similar motions. On the board filed opinion and a written the trial court issued summary granting motions order disposition defendants’ regarding liability for Fica the board’s August attorney incurred before no’s fees granted 7, 1988. The court also after October regarding disposition summary Ficano’s motion for the .board’s obligation pay incurred those fees August 7, 1988. All 25, 1988, and October between pursuant granted to MCR motions were 2.116(C)(10). Basically, determined the court only fees incurred for those the board was liable by period 25, 1988, to Octo Ficano for the authorizing out while the resolution ber August 24, 1990, the in effect. On side counsel was trial court ordering judgment, entered a final plaintiff pay fees $56,560.75 in board right appeals period. as of Plaintiff Ficano granting motions. defendants’ from the final order appeal.2 have not filed a cross Defendants i *6 argues court erred in Plaintiff first that the trial recognizing validity of the commissioners’ Oc- wherein the commission- tober ers revoked their retain outside counsel. resolution plaintiff to

authorization for legally argues that board could not Plaintiff plaintiff’s outside revoke counsel and that the October authorization 6, 1988, resolution is (1) statutory duty to void because: the board had a (2) provide counsel, him the conflict between with him, board, extin- and was not McNamara (3) guished withdrawal, and with McNamara’s represent corporation him could not while counsel also contends that the the conflict existed. Plaintiff immediate retention of crisis outside counsel and demanded situation Angelas handle the could not increase in work without the continued assistance from the legal staff.3 The counsel’s argues existed board that no conflict of interest withdrawal of his that after McNamara’s representation by preclude would of Ficano not contend counsel. McNamara does but, existed, rather, that it is that no conflict irrelevant because obliga- county’s statutory provide legal to the sheriff was tion to counsel Angelas, employment satisfied the continued acknowledged liability for services 25, 1988, The board has period August to counsel for the rendered October support position resolution is In of his that the October void, only Michigan have invali Ficano cites cases where the courts cases are ordinances that were unconstitutional. None of those dated applicable the resolution in this case because no one has claimed unconstitutional. Bd Comm’rs Co Sheriff Opinion, of the Court paid by county who was exclusively. interests sheriffs ques- that "factual The trial court determined may exist as to whether tions 'jail in the case’ the Sheriff was able receivership respect Nonethe- motion.” with to the finding proceeded less, a factual to make the court presence Angelas of the as Director Sheriffs Service Division Department, plaintiffs in-house previous years, jail satisfied thirteen case provide plain- statutory duty to the commissioners’ In action. tiff with counsel essence, that because the trial court determined paid Angelas the sheriffs competent office, and had because he was complied unquestioned loyalty sheriff, it had to the obligation 5.826, had no 49.73; MCL MSA counsel. additional pertinent provides in 49.73; MSA 5.826 MCL *7 part: county of a shall The board of commissioners county represent elected

employ officers, to matters, ... in civil including the defendant, prosecuting at- neither the as a when to county corporation counsel is able torney or advice, Legal represent particular officer. coun- the sel, required under this action shall be or court involves an official act only in a case which section or the officer. The duty of the office of compensation as attorney shall be determined receive reasonable shall of commission- by the board ers. above, not reveal the the record does

As noted au initial resolution for the commission’s reason thorizing represent Ficano counsel to Angelas requiring utilize as Ficano to rather than Opinion op the Court why the represent plaintiff reveal his counsel. Nor does the record Angelas not look to to board did following petition. the withdrawal of McNamara’s language only know from of the board’s We second resolution that the board was concerned ability corporation counsel about of the represent Ficano in view of the conflict between .4 Ficano and McNamara acting question county,

There is no through commissioners, statuto- its board of obligated legal rily receivership proceed- against counsel to defend ing. agree We with the trial court that the statute require legal does not retention of outside counsel opposed Therefore, to in-house counsel. the real as (1) in whether a con- controversies this case are: with- flict interest remained after McNamara’s corpo- drawal of his ration that would render the represent ethically unable (2) receivership litigation;5 so, in if whether provided pertinent part: The October resolution in [PJayments firms fees shall cease to outside representing Commission’s Counsel immediately upon the Chairman of the personal Corporation receipt of a letter from the indicating that the can Wayne County, al. the Sheriff the lawsuit Jail Inmates v et Michigan governs 1.7 Rule Rules of Professional Conduct conflicts of interest follows: (a) lawyer representation A not if shall a client client, directly of that client will be adverse to another unless: (1) lawyer reasonably representation will not believes the adversely relationship client; affect the with the other (2) each client consents after consultation. (b) lawyer representation A shall not a client if the may materially lawyer’s respon- of that client limited person, client or sibilities to another or a third interests, lawyer’s own unless: *8 (1) lawyer reasonably representation the believes the will not adversely affected; and (2) representa- the client consents after consultation. When undertaken, multiple single tion of clients in a matter is the Wayne Bd Co op the Court employed by Angelas, the who was exclusively, and the time had the adequately necessary in staff receivership proceeding the assistance without the and administrative counsel’s of a (3) adequately Angelas could not if staff;6 nd implications explanation of the the of shall include consultation common advantages risks involved. representation the and ánd Angelas, in filed May of Adam According affidavit the support motion: of Ficano’s litigation many years in represented the Sheriff I5. have McNamara, Inmates, County al v Edward Wayne Jail et titled From the al, County 71-173-217-CZ. Wayne Court No. Circuit et recently mid representation beginning my in 1975 until as of with, needed, and draw 1988, to work I was able whenever Corporation County upon and his the resources highly not the Jail case was 1983 to staff. From process adversarial, attempting engaged into of parties in the were rather the compliance the bring with Jail conditions parties the until mid From 1986 court orders. various were in the attempting orders all court process to consolidate of primarily in my involved judgment and work into attendance final one meetings negotiations with other and at judgment preparation of the final jail in the monitors and the and other implementation findings and concerning the monitor pleadings the of jail judgment case. in the final of the court’s County September Executive of In and litigation Inmates in the Jail filed motions Jail Inmates and the seeking County appointment a receiver for of changed substantially nature of Those motions Jail. litigation the Sheriff relationship highly between adversarial and created a Executive, conflicts and also created and the of Commissioners and the Board the Sheriff between . . . Counsel. myself single lawyer particularly like single lawyer, 7. No duties, possibly could ongoing administrative quality of provided the resources Sheriff with have representation litigation. Receivership I did given him in the regularly time, I to do so. or resources staff not have the Bodman filed other materials the briefs and reviewed firm in the all, most, case, if not and attended per- my opinion extensive services proceedings. that the It is representing the Sheriff in firm the Bodman formed vigorous necessary light Receivership litigation were representing adverse multiple lawyers advocacy of the completion imposed parties time constraints and the the case. *9 App 508 498 Opinion of the Court representation required, whether exi gent circumstances existed. recognized

The trial court factual issues presented regarding were though issue, the first even represented by

McNamara was his own counsel rather than the in receivership proceedings.7 Nevertheless, the court Angelas indisputably concluded that because was competent loyal presence and to the his was, law, as a matter of sufficient to show the compliance statutory obligation board’s with its provide legal representation to the sheriff. disagree Although Angelas’ competence

We loyalty dispute, is not in the factual issue remains Angelas prop- whether had the time and staff to erly represent Angelas if was unable to utilize the assistance of the staff of the counsel’s office because of that office’s

purported questions conflict of interest.8 Because of fact must regarding resolved issues the trial granting summary disposition. court erred in SSC Partnership Associates Limited v General Retire- System City App ment Detroit, of 192 Mich (1991); 360, 366; 480 NW2d 275 Jubenville v West Cartage, Inc, End 203; grant NW2d 705 of We therefore reverse the summary disposition in favor of defendants and remand to the trial court for a determination of the factual issues. Angelas remand, if it is determined that opinion May The trial court’s stated: However, Corporation repre- because the Counsel’s Office did Commissioners, sent the may and because of the conflict that legal relationship be created because of the between the CEO Corporation Counsel, appears it to the Court that factual questions may exist as to whether Counsel was "jail able respect Sheriff case” with motion. Angelas, 6, supra. See uncontested affidavit of Adam footnote Bd Co Comm’rs Court adequately be-

not able August 25, 1988, the trial 15 and tween exigent circum- whether also consider court shall from existed that would excuse stances obtaining required authorization, the board’s 83-13, No. effective Octo- Ordinance retaining counsel.9 before ber argues that because McNamara’s Plaintiff hearing August 29, on was scheduled for action *10 plaintiffs im- necessitated a crisis situation Michigan outside counsel. mediate retention of public recognized principle that have courts acting capacity may retain in their official officials permission the local of outside counsel without governing body justified' retention is if the Smedley exigent Ha- See v Grand circumstances. (1900); City of ven, 424; 84 NW 626 125 Mich App Dannis, 651; 357 136 Mich NW2d Warren (1984); Twp Twp Bd, Clerk v Exeter Exeter App Whether 262; 310 NW2d present justify exigent are circumstances private is a counsel unauthorized retention part: County provides pertinent 83-13 Ordinance No. 3: COUNSEL SECTION SEPARATE LEGAL repre- employ County shall an The Commission members, Commission, County Executive its the Chief sent the officers, Officer, officials, agencies any departments, or or other directors, trustees, employ- or officers or instrumentalities their Attorney Corporation Prosecuting neither the nor ees when advice, however, provide legal representation; is able only required this section or court action under counsel in civil the Chief shall members, Commission, matters when such officials, Officer, any departments, Executive or other director, trustees, officers, agencies or or their instrumentalities employees party involves defendant and the case or is a officers duty act or of the office. an official WRITTEN REJECTIONS SECTION REQUIRED 4: legal engaging separate Any request shall be rejections by request preceded by written written Prosecuting Attorney and the Counsel. Opinion op the Court question Smedley, supra finder of fact. at statutory obligation above, 429. As noted provide legal representation mandatory. is Never- ignore provisions theless, no we find reason to provide of the ordinance that for notice to the legal representation. board of the officials’ need for opportunity The board is thus afforded an mine whether to deter- adequate representation in-house is (i.e., corporation attorney, available counsel or an Angelas, employed such as representation who is avoiding exclusively)

to an official necessity engaging counsel. ii argues jury Plaintiff also that he is entitled to a trial to determine the reasonableness of the attor- ney fees he incurred in the action. We disagree. specifically 49.73; MCL MSA 5.826 states compensation shall be determined Additionally, plaintiffs board of commissioners. complaint, although phrased an action for money damages, actuality equitable inis action reimbursement fees or for mandamus. Plain- *11 any damages by tiff has not suffered reason of asserting contract, but, rather, breach of a is his statutory rights. City Dannis, See of Warren v supra, Twp supra. Clerk, and Exeter Plaintiff is jury equitable not a entitled to trial in this ac- tion.10

in plaintiffs argument We decline to review that Smedley Haven, 424; Plaintiff cites v Grand NW (1900), support right However, jury Smedley for his to a trial. is distinguishable plaintiff Smedley from this case because the in mayor’s attorney asserting rights against and was his contractual city. Bd Co by Fitzgerald, P.J. expenses in- he to recover fees is entitled bringing de- An issue not in this action. curred cided preserved for review is not the trial court Clemens, 193 Mount Court. McKelvie v this con- 81, 86; We 483 NW2d miscarriage justice not result will clude declining issue. Id. On to review this from our remand, pursue plaintiff to his motion free is attorney fees.

iv plaintiffs Finally, claim have considered we adopted in 1988, resolution was the October Open Meetings Act, et MCL 15.261 violation 4.1800(11) agree seq.; seq., et MSA merit. is without trial court that claim dispo- granting summary Accordingly, the order periods 15 to sition August defendants is and after October proceedings con- for further remand reversed. We opinion. jurisdic- We do not retain with this sistent tion.

Hood, J., concurred. (concurring part in P.J. and dissent-

Fitzgerald, majori- ing part). respectfully I dissent from in dispute ty’s there is a factual conclusion that regarding Angelas’ ability receivership proceeding. 49.73; MSA MCL requires to em- of commissioners 5.826 board ploy he when corporation defendant and is named as a repre- prosecuting attorney are unable to and the employ Thus, whether him. the decision sent counsel by case. is made case defend employment of the full-time I not believe that do *12 Fitzgerald, P.J. duty pro- in-house counsel satisfies the board’s vide counsel where the board decides not to em- ploy given any the in-house counsel in case. In this party case, may board, which is the ultimately responsible Angelas’ fees, has conceded em- ployment as in-house counsel is irrelevant determination whether the board satisfied its stat- utory duty to defend.1

I majority concur with the remainder of the opinion. 1Only county’s statutory obligation McNamara contends that the

provide legal employment to the sheriff was satisfied the continued Angelas.