Should the public pay for officials' legal fees?

This month, Union County ended a nearly million-dollar lawsuit with a former county manager.

But commissioners have been racking up another legal tab: Since April, the county has spent $87,000 in public money on a law firm representing three commissioners in an FBI investigation.

State law allows counties to pay public officials' legal fees. But two fellow commissioners on the five-member board are questioning the expense. Ethics experts also questioned about the expenditure.

“I don't know that we should be paying for that,” said commissioner Roger Lane, who with his colleague Lanny Openshaw is not represented by the firm. “However, if we are paying for it, I think that it should stop at some point.”

It's unclear what the investigation is about, because grand jury proceedings are secret. However, people interviewed by the FBI have told the Observer that agents asked questions about the county's sewer system and distribution of limited sewer service.

Openshaw said county taxpayers should not pay anything if any of the commissioners are convicted of a crime.

“If they're falsely accused, then they should be defended,” he said. “But if they're found guilty, they should be on the hook for every red cent.”

Union County Attorney John Burns says the county followed its own policy in hiring the law firm, Wyatt & Blake, to represent commissioners chairman Allan Baucom and commissioners Kevin Pressley and Parker Mills.

Burns has said the FBI is investigating allegations involving the commissioners' service to the county. He has called those allegations “groundless as they relate to the commissioners,” and said hiring legal counsel was “not only prudent, but necessary.”

Neither Chairman Allan Baucom nor commissioner Kevin Pressley returned phone calls. Mills said there have been no indictments.

“It's hopefully going to end pretty soon,” Mills said. He declined to elaborate.

At least one recent example of a criminal investigation involving a public official – the conviction of N.C. Rep. Jim Black on federal and state corruption charges – shows how stewards of taxpayer money took a different tack in handling legal fees. The N.C. attorney general first limited Black to $30,000, then required him to reimburse the state when he pleaded guilty.

Union County's spending has looser parameters. The commissioners voted in June to spend up to $30,000 per commissioner per fiscal year on individual legal representation – and with that motion, they doubled a limit they had set in March. And the amount could be increased.

“We can change that in a heartbeat,” Lane said.

Burns, the county attorney, said in an e-mail that the county's legal defense policy does not say what would happen if a commissioner were indicted or convicted. It does say, however, that the county will not defend a claim when an official has done something “because of actual fraud, corruption or actual malice” or “in such a manner as to constitute a criminal act.”

“I am confident in the matter of our commissioners; this question will not need to be addressed,” Burns wrote.

The policy does not specifically mention criminal cases. It says the county will “defend its officers and employees against civil actions, claims or proceedings arising from any act done or omission made, or any act allegedly done or omission allegedly made, in the course and scope of his/her employment or duty as an officer or employee of the County.”

In an e-mail, Burns said that applies to a criminal investigation. “The word ‘civil' modifies only the next word, ‘actions' and not ‘claims or proceedings,'” he wrote.

But Openshaw questioned that interpretation of the policy. “I definitely want another opinion,” he said.

Fleming Bell, a professor at UNC Chapel Hill's School of Government, said Union is within its authority to cover the commissioners' legal expenses. But he said the commissioners must consider carefully their responsibility to the public.

“They're in a position of having to define in their minds what the public interest is,” Bell said. If the commissioners are innocent, “it is probably within the public interest to have the integrity of the public office upheld.”

But, he said: “They have to weigh that against, ‘Well, maybe we did something we shouldn't have.'”

Bell also wondered whether the three commissioners have a conflict of interest in authorizing payment for their own legal bills, a decision that benefits them financially.

“Maybe the best thing would be for them not to be voting,” Bell said. “The three who are being defended could ask to be recused from it.”

Bob Phillips, of Common Cause North Carolina, a group that advocates for open government and stricter ethics rules, said he believes the county should require commissioners to pay the money back if they are found guilty of a crime.

“At a minimum, it would be nice for the public to know a little bit more about it and whether there are some boundaries,” Phillips said. “Does the public have any recourse to get this back?”