Could a Wyoming county commission appoint a 'special prosecutor' to assist the elected county and prosecuting attorney while keeping that attorney under the commission's supervision, and could the elected county attorney's father be hired into that position?

Plain-English summary

The Big Horn County Commissioners passed a resolution appointing M. Scott McColloch as a "Big Horn County Special Prosecutor" to help his daughter, the elected Big Horn County and Prosecuting Attorney Michelle McColloch Burns, with criminal and juvenile cases, but with the appointment placing him under the commission's supervision rather than hers. State Representative Elaine Harvey asked the AG whether either the supervision arrangement or the family relationship was lawful.

AG Patrick Crank answered no to both. The first answer was about who supervises prosecutors. Under Wyo. Stat. Ann. § 9-1-804, the elected county and prosecuting attorney has "exclusive jurisdiction" over criminal, misdemeanor, and juvenile prosecutions in the county. Section 9-1-808 says deputies and assistants act "under the direction and control" of that attorney. Section 18-3-302(c) lets a board of county commissioners hire an additional attorney to help with the work, but only to "appear and prosecute or defend or assist the county and prosecuting attorney", meaning the elected attorney still runs the prosecution. Putting the assisting attorney under the board's management would have flipped the constitutional structure. The Wyoming Supreme Court had repeatedly held in Billis v. State and DeLeon v. State that the prosecutor "is vested with the exclusive power to determine who to charge with a crime and with what crime to charge them," and that discretion cannot be reassigned to a non-prosecutor.

The second answer was about nepotism. Wyo. Stat. Ann. § 9-13-104 prohibits a public official from supervising or managing a family member who is in an office or position of the state or county. The opinion read that prohibition together with the rule that the elected county attorney supervises every assistant attorney in her office, and concluded that the elected attorney could not have her father working as an assistant, even one nominally hired by the commission, because he would inevitably be supervised by her in his prosecutorial work. (A separate 1998 AG opinion had read § 9-13-104 more narrowly, and this 2005 opinion declared 1998's reading "erroneously decided." The 2011 AG opinion in turn modified parts of this 2005 reading where it said an elected official always supervises every employee.)

Currency note

This opinion was issued in 2005, and the Wyoming Attorney General modified parts of its nepotism reasoning in Formal Opinion 2011-001. Treat this page as historical context, not current legal advice. Verify current law and check for later opinions on Wyo. Stat. Ann. § 9-13-104 before relying on any specific rule mentioned here.

Background and statutory framework

Wyoming counties are run by an elected board of county commissioners. The board has the general authority to manage county business under Title 18, but several specific roles are carved out for separately elected officers. The county and prosecuting attorney is one of those roles in counties without a district attorney's office.

The structure ran through three layers in this opinion:

1. The general rule of attorney representation. Under Wyo. Stat. Ann. § 18-3-520, the board "shall not" employ an attorney except as provided by § 18-2-110, and the nature and necessity of the employment must appear in the record of the board.

2. The narrow exception to hire substitute counsel. Section 18-2-110 lets the board employ counsel to defend it in legal proceedings against the county "in the absence of the county attorney." The Wyoming Supreme Court in Casper Nat'l Bank (1940) read this broadly enough to cover situations where the county attorney was conflicted or refused to act.

3. The separate authority to hire assisting counsel. Section 18-3-302(c) provides that nothing in that section prevents the commissioners "from employing one (1) or more attorneys to appear and prosecute or defend or assist the county and prosecuting attorney." The opinion read this as a workload-relief provision, not a power to take over the prosecution function.

The exclusive prosecutorial-jurisdiction track is at Wyo. Stat. Ann. § 9-1-804, which gives the elected county and prosecuting attorney (or district attorney where one exists) exclusive jurisdiction to act for the state in felonies, misdemeanors, and juvenile cases, to defend habeas petitions, to appear at preliminary examinations and inquests, and to appear before grand juries. Section 9-1-808 makes deputies and assistants act under the direction of the elected attorney.

The nepotism track is at the Wyoming Ethics and Disclosure Act, Wyo. Stat. Ann. §§ 9-13-101 through 109. Section 9-13-104 prohibits any public official, public member, or public employee from advocating or causing the employment, promotion, transfer, or advancement of a family member into a state, county, municipal, or school-district office or position. It also prohibits supervising or managing a family member who is in such a position, and from participating officially in matters of employment or discipline of a family member. Family member is defined at § 9-13-102(a)(v) to include a parent.

Common questions

Q: Could the Big Horn County Commission really not assign criminal prosecutions to a prosecutor under its own supervision?
A: Right. The opinion read § 9-1-804 as giving "exclusive jurisdiction" to the elected county and prosecuting attorney over felony, misdemeanor, and juvenile cases. The Wyoming Supreme Court in Billis held that the prosecutor's charging discretion is constitutionally vested in that office, and DeLeon added that no other authority may supplant the prosecutor in the absence of a conflict. The commissioners had no statutory hook for assuming supervision of a prosecutor.

Q: When could the commission hire its own attorney instead of using the county attorney?
A: Only narrowly. Wyo. Stat. Ann. § 18-2-110 lets the board employ counsel to defend the commissioners or a member in legal proceedings against the county "in the absence of the county attorney." The Wyoming Supreme Court extended that to cases where the county attorney was conflicted or refused to act. Outside those circumstances, the county attorney is the county's lawyer.

Q: What's the difference between substitute counsel under § 18-2-110 and assisting counsel under § 18-3-302(c)?
A: Substitute counsel takes the county attorney's place when she is absent, conflicted, or refusing. Assisting counsel under § 18-3-302(c) supplements the county attorney when the workload calls for it. The opinion read both as keeping the elected county attorney in command of any prosecution she is responsible for.

Q: How did Wyoming's anti-nepotism statute apply to a parent–child supervisory chain?
A: Wyo. Stat. Ann. § 9-13-104(a) bars a public official from supervising or managing a family member in a county office or position. The 2005 opinion concluded that an elected county attorney was the head of her office and therefore supervised every employee in it, so a parent could not work under her: even with the commission nominally hiring him.

Q: Did this opinion fully resolve § 9-13-104?
A: Not entirely. A 1998 AG opinion had read § 9-13-104 to allow a family member to work in the office as long as the elected official did not personally participate in the family member's discipline. This 2005 opinion declared that earlier reading erroneous. In 2011, the AG issued Formal Opinion 2011-001, which revisited the question in the context of an already-employed deputy sheriff whose father later became the elected sheriff, and modified the 2005 reasoning by distinguishing between "supervisory authority" in the abstract and actual day-to-day supervision.

Q: Could the father have been hired with public funds in any role within the county attorney's office?
A: Under the 2005 opinion's reasoning, no. Section 9-13-104 was read to prevent any working arrangement in which the elected daughter would supervise her father. Whether the 2011 modification would have changed this specific result depends on the details of supervision; the 2011 AG opinion expressly said the same outcome would still apply because the appointment was prospective.

Citations and references

Wyoming statutes:
- Wyo. Stat. Ann. § 9-1-804
- Wyo. Stat. Ann. § 9-1-808
- Wyo. Stat. Ann. § 9-13-102
- Wyo. Stat. Ann. § 9-13-104
- Wyo. Stat. Ann. § 18-2-110
- Wyo. Stat. Ann. § 18-3-111
- Wyo. Stat. Ann. § 18-3-301(a)
- Wyo. Stat. Ann. § 18-3-302
- Wyo. Stat. Ann. § 18-3-520

Wyoming cases:
- Billis v. State, 800 P.2d 401 (Wyo. 1990)
- DeLeon v. State, 896 P.2d 764 (Wyo. 1995)
- Appel v. State ex rel. Shutter-Cottrell, 61 P. 1015 (Wyo. 1900)
- Board of Comm'rs Natrona County v. Casper Nat'l Bank, 105 P.2d 578 (Wyo. 1940)
- Parker Land & Cattle Co. v. Wyoming Game & Fish Comm'n, 845 P.2d 1040 (Wyo. 1993)

Out-of-state authority:
- State v. Jaramillo, 749 P.2d 1 (Idaho 1987)
- People v. Hastings, 903 P.2d 23 (Colo. 1994)

Prior AG opinions discussed:
- Wyoming AG Formal Opinion 1986-027
- Wyoming AG Formal Opinion 1998-009 (declared erroneously decided)

Source

• Landing page: https://ag.wyo.gov/formal-opinions
• Original PDF: https://drive.google.com/file/d/0B-uookG6TajHVXVGSEVDdU0yWHM/view?resourcekey=0-rHHohL9IodVxo-ioLTKg8g

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Office of the Attorney General

Governor Dave Freudenthal
Attorney General Patrick J. Crank
Chief Deputy Attorney General Elizabeth C. Gagen

123 State Capitol
Cheyenne, Wyoming 82002
307-777-7841 Telephone
307-777-6869 Fax

FORMAL OPINION NO. 2005-001
August 5, 2005

The Honorable Elaine Harvey
Wyoming State Representative
792 Garfield Avenue
Lovell, Wyoming 82431

Dear Representative Harvey:

On June 29, 2005, you requested an opinion on the following questions:

Question 1: Did the Resolution of the Board of Big Horn County Commissioners properly appoint M. Scott McColloch as a Big Horn County Special Prosecutor under the management and supervision of the Board to appear and prosecute or assist the Big Horn County and Prosecuting Attorney in all matters civil or criminal?

Brief Answer: No. The Big Horn County Attorney has the exclusive jurisdiction to act as the prosecuting attorney for the State of Wyoming in Big Horn County and those duties may not be assigned to the elected officials on the Board of Big Horn County Commissioners. As a result, the Big Horn County Attorney, and not the Board, must supervise subordinate attorneys acting on behalf of the State of Wyoming in the prosecution of criminal charges and juvenile court petitions.

Question 2: Can M. Scott McColloch appear, prosecute or assist the Big Horn County Prosecuting Attorney Michelle McColloch Burns under WYO. STAT. § 9-13-104?

Brief Answer: No. Pursuant to WYO. STAT. § 9-13-104 Michelle McColloch Burns may not hire, supervise or manage her father, M. Scott McColloch, in any capacity.

DISCUSSION

Question 1

There are several sections in the Wyoming Statutes which spell out when a board of county commissioners may employ attorneys. WYO. STAT. § 18-3-520 provides:

No attorney shall be employed by the board of county commissioners except as provided by W.S. 18-2-110 and the nature and necessity of such employment shall appear in the record of the board.

WYO. STAT. § 18-2-110 provides:

In all legal proceedings against the county process shall be served on the board of county commissioners or any member thereof and they may in the absence of the county attorney employ an attorney to defend them, for which they may make an appropriation from the general county fund.

Likewise, there are a number of sections in the Wyoming Statutes which set out the duties and responsibilities of a county and prosecuting attorney and her deputy or assistant county and prosecuting attorneys. WYO. STAT. § 18-3-111 provides:

All county officers are responsible for the acts of their deputies and assistants, and as such are liable on their official bond.

WYO. STAT. § 18-3-301(a) provides, in part:

In judicial districts in which the office of district attorney has not been created there shall be elected in each county a county and prosecuting attorney who at the time of his nomination and election and during his term of office, shall be a member of the bar of this state.

WYO. STAT. § 18-3-302 provides, in part:

(b) In any county in a judicial district in which the office of district attorney has not been created, the county and prosecuting attorney shall have the jurisdiction, responsibilities, and duties of the district attorney and of the county attorney.

(c) Nothing in this section shall be construed to prevent the county commissioners of any county from employing one (1) or more attorneys to appear and prosecute or defend or assist the county and prosecuting attorney in behalf of the people of the state or such county in any action or proceeding, whether civil or criminal.

Pursuant to WYO. STAT. §§ 18-3-302(b) and 18-3-106, a county attorney in a county with a population less than sixty thousand (60,000) will function as the county and prosecuting attorney. Under Title 9 of the Wyoming Statutes, county and prosecuting attorneys have the same authority, jurisdiction, responsibilities and duties which would otherwise be assigned to a district attorney in counties with larger populations. WYO. STAT. § 9-1-804 provides, in part:

(a) In addition to other duties prescribed by law, each district attorney [or county and prosecuting attorney] has exclusive jurisdiction to:

(i) Act as prosecutor for the state in all felony, misdemeanor and juvenile court proceedings arising in the counties in his district, and prosecute such cases in the district courts and courts of limited jurisdiction or in other counties upon a change of venue;

(ii) Defend against all petitions for writs of habeas corpus filed in his district by any person charged with or convicted of any public offense in his district. This duty does not extend to petitions filed by inmates of state penal institutions;

(iii) Render assistance as required by the attorney general in the preparation and argument of criminal appeals arising in his district and in the defense of petitions for habeas corpus filed by inmates in state institutions arising from alleged deprivation of rights at the time of or prior to conviction;

(iv) Appear before any judge in the preliminary examination of persons charged with any offense in his district;

(v) Appear at all inquests held by any coroner in his district;

(vi) Appear at all sessions of any grand jury convened in any county within his district.

WYO. STAT. § 9-1-808 provides:

Each deputy and assistant district attorney [or deputy and assistant county and prosecuting attorney], under the direction and control of the district [or county] attorney, has the same powers and duties as the district [or county] attorney by whom he was appointed, except that all acts shall be done in the name of the district [or county] attorney.

The Wyoming Supreme Court has discussed at length the nature and extent of a prosecuting attorney's authority and the separation of those powers, as an officer of the executive branch, from the powers of the judicial and legislative branches. As part of its analysis of the principle of separation of powers, the Court ultimately concluded:

[T]he legislature of the State of Wyoming has chosen to vest in the prosecuting attorney the discretion with regard to what charges to file and in what court they should be filed.

Billis v. State, 800 P.2d 401, 417 (Wyo. 1990); quoting Jahnke v. State, 692 P.2d 911, 929 (Wyo. 1984).

The prosecutor is making decisions and controlling the criminal prosecution. In the exercise of these powers, the prosecutor may decide to add charges, to drop charges, or to reduce charges. The prosecutor may decide to dismiss some, but not all, charges. The prosecutor may decide to enter into plea negotiations. The prosecutor may decide to dismiss all charges and terminate the prosecution under W.R.Cr.P. 45(a).

Billis, 800 P.2d at 423.

Since then, the Court has affirmatively cited to the above language from Billis, while further explaining and qualifying that the prosecutor's discretionary charging powers belong to the prosecuting attorney alone:

The prosecutor is vested with the exclusive power to determine who to charge with a crime and with what crime to charge them.

DeLeon v. State, 896 P.2d 764, 768 (Wyo. 1995) (emphasis supplied); quoting Billis, 800 P.2d at 417.

Your first question refers to a Resolution which was issued by the Board of Big Horn County Commissioners. The Resolution memorialized the Board's appointment of M. Scott McColloch, as a Big Horn County Special Prosecutor under the management and supervision of the Board. The Board's authority to manage and supervise a full-time "special prosecutor" appears to be tied to their understanding of their powers under WYO. STAT. § 18-3-302(c), although the Resolution does not specifically articulate it as the source of such supervisory powers. Subsection (c) does provide that if the amount of work justifies it, the Board may employ additional attorneys to assist the Big Horn County and Prosecuting Attorney. However, we find no authority in the language which would provide the Board with the authority, duty or responsibility of managing or supervising the prosecution of criminal charges and juvenile court matters by an assistant county and prosecuting attorney.

The Resolution is clear that the duties of the "special prosecutor" are primarily to assist the Big Horn County and Prosecuting Attorney in the "prosecution of criminal and juvenile cases in Big Horn County." The supervision of attorneys assisting in the routine prosecution of criminal and juvenile cases falls squarely within the exclusive jurisdiction, responsibilities, and duties of the elected Big Horn County and Prosecuting Attorney pursuant to WYO. STAT. §§ 9-1-804(a)(i) and 9-1-808. See DeLeon, 896 P.2d at 768.

WYO. STAT. §§ 18-3-520 and 18-2-110 do provide the Board both the authority and right to retain an attorney in limited circumstances. A board of county commissioners may employ an attorney, in the absence of their county attorney, to defend the board or any member thereof in circumstances involving legal proceedings against the county. The Wyoming Supreme Court has generally interpreted this authority to permit a board to retain an attorney to assist the county attorney or to act on behalf of the board and at its direction, independent from the county attorney, where the attorney would defend the board in legal proceedings, civil or criminal, brought against the county and/or an elected official thereof. See Appel v. State ex rel. Shutter-Cottrell, 61 P. 1015 (Wyo. 1900); Board of Com'rs Natrona County v. Casper Nat'l Bank, 105 P.2d 578 (Wyo. 1940). The Wyoming Supreme Court did recognize that the general right of a "board of county commissioners to engage private counsel, in the absence of the county attorney, or his refusal to act, as he did in this case, is not questioned." Casper Nat'l Bank, 105 P.2d at 582. See also Wyoming Attorney General Opinion No. 86-27 (December 8, 1986) (Concluding a board of county commissioners has no authority to employ private counsel to advise the board, unless the county and prosecuting attorney is absent, refuses to act or has a conflict of interest).

The Wyoming Supreme Court's review and application of WYO. STAT. § 18-3-302(c) in the Appel case and the Casper Nat'l Bank case is of little guidance since both cases were factually distinct from the circumstances presented in the Resolution. The Court has never been presented with the question of whether WYO. STAT. § 18-3-302(c) authorizes a board of county commissioners to employ an attorney to prosecute criminal charges and juvenile court cases independent from the supervision of the county and prosecuting attorney who is vested with the exclusive power and responsibility for carrying out those duties. The Wyoming Supreme Court has expressly determined a county and prosecuting attorney is vested exclusively with the discretion and control over the prosecutorial functions in his or her county. Billis, 800 P.2d at 423; DeLeon, 896 P.2d at 768.

The Wyoming Supreme Court has never considered which of those powers a deputy or assistant prosecuting attorney might exercise and/or hold. When other states have considered similar questions, the courts have determined that the prosecuting attorney's powers are conferred on her deputy prosecuting attorney because their relation is that of principal and agent. State v. Jaramillo, 749 P.2d 1, 3 (Idaho 1987). Likewise, while the Wyoming Supreme Court has not considered whether these powers may be completely delegated to another official or entity, generally, a prosecuting attorney may not be supplanted in his or her duties by any other authority unless he or she has a conflict of interest in any case, which would warrant the appointment of a special prosecutor. Such circumstances create narrow exceptions to a prosecuting attorney's general authority. People v. Hastings, 903 P.2d 23, 25 (Colo. 1994). However, under the plain meaning of the language in WYO. STAT. § 18-3-302(c), there is nothing to suggest the legislature intended, expressly or implicitly, to vest or otherwise divert the exclusive discretion and control away from the prosecuting attorney to the board of county commissioners.

Inasmuch as WYO. STAT. § 18-3-302(c) provides the Board a mechanism for employing an attorney to act as a prosecutor, it is expressly qualified by the language, "to appear and prosecute or defend or assist the county and prosecuting attorney in behalf of the people of the state or such county in any action or proceeding, whether civil or criminal." It is well established that the inclusion of any words or phrases in a statute are to be "construed as a whole in order to ascertain its intent and general purpose and also the meaning of each part." Parker Land & Cattle Co. v. Wyoming Game & Fish, 845 P.2d 1040, 1042 (Wyo. 1993).

In 1981, the legislature amended WYO. STAT. § 18-3-302 as part of House Bill 13 which, among other things, provided for the district or county wide election of either a district attorney or a full-time county and prosecuting attorney, respectively, and appropriated state money to help fund, in part, the creation of a prosecuting attorney's office in every county in Wyoming. 1981 Wyo. Sess. Laws, sp. sess., ch. 21, §§ 1 & 2. Prior to 1981, WYO. STAT. § 18-3-302(a) outlined a more comprehensive list of duties for county and prosecuting attorneys; however, the amendment effectively eliminated only those duties which would have duplicated the duties now found in WYO. STAT. § 9-1-804 (formerly W.S. 9-2-522 (Rev. St. 1977)). Moreover, the qualifying language, "appear and prosecute or defend or assist," in subsection (c) appears to have been more appropriate, and logical, when it paralleled the "old" language in W.S. 18-3-302(a) (Rev. St. 1977) prior to its elimination in 1981. The parallel language now appears at WYO. STAT. § 9-1-804(a), but remains implicitly a part of the section under WYO. STAT. § 18-3-302(b).

The qualifying language, then, appears to have been included originally for the purpose of clarifying that, if the county and prosecuting attorney's work load was such that she required the assistance of an additional attorney to appear on her behalf to prosecute or defend or assist in fulfilling her duties then nothing in WYO. STAT. § 18-3-302 should be construed as preventing the county from employing additional attorneys for that purpose. An elected prosecutor's ability to directly supervise an attorney hired to assist her is both practical and prudent since that attorney will be acting on her behalf, and in her name, to fulfill her duties and responsibilities under WYO. STAT. §§ 18-3-302(a) and (b), 18-3-111 and, in the absence of a district attorney, 9-1-804 and 9-1-808. The Big Horn County and Prosecuting Attorney retains the ultimate responsibility for fulfilling the duties of the office to which she was elected and this must necessarily include the supervision of any attorney employed by the Board to assist her to those ends.

Therefore, it is our opinion that WYO. STAT. § 18-2-302(c) only provides for the Board's involvement in approving the employment of a deputy or assistant county and prosecuting attorney. That attorney's duties as a prosecutor may only be directed by, and be placed under the supervision of, the elected Big Horn County and Prosecuting Attorney.

Question 2

The Big Horn County and Prosecuting Attorney is a public official within the meaning of WYO. STAT. § 9-13-102(a)(xiv) which defines the same as "an individual elected to a state or local office whether or not the individual has yet assumed the office[.]" Public officials are strictly prohibited from taking part in any form of nepotism, a practice which is defined as the appointment of others to positions by reason of blood or marital relationship to the appointing authority. Black's Law Dictionary (6th ed. 1994). Wyoming's nepotism statute, WYO. STAT. § 9-13-104, provides:

(a) No public official, public member or public employee shall advocate or cause the employment, appointment, promotion, transfer or advancement of a family member to an office or position of the state, a county, municipality or a school district. A public official, public member or public employee shall not supervise or manage a family member who is in an office or position of the state, a county, municipality or school district.

(b) A public official, public member or public employee, acting in his official capacity, shall not participate in his official responsibility or capacity regarding a matter relating to the employment or discipline of a family member.

Read together, WYO. STAT. §§ 9-13-104(a) and (b) prohibit an elected official from hiring, promoting, transferring, supervising, managing, disciplining, or firing a family member. These sections effectively prohibit an elected official's family member from working in the official's office, because each elected official is the head of his or her office, and therefore must have supervisory authority over all employees of that office.

The statute does not look to subjective intent but simply sets an objective standard. As used in the statute, "family member" includes a parent. WYO. STAT. § 9-13-102(a)(v)(A). Any attorney employed by a board of county commissioners to assist with criminal or juvenile prosecutions in the county must necessarily be supervised by the elected county and prosecuting attorney. Therefore, even if the Board had merely hired M. Scott McColloch, he could not work as an assistant to his daughter, the elected Big Horn County and Prosecuting Attorney, because of the prohibition within WYO. STAT. § 9-13-104(a).

CONCLUSION

It is our opinion that WYO. STAT. § 18-3-302(c) does not permit or authorize the Board to employ an attorney as set forth in the Resolution. It is also our opinion that WYO. STAT. § 9-13-104 further prohibits this arrangement.

Patrick J. Crank
Attorney General

Paul S. Rehurek
Deputy Attorney General

Melissa M. Swearingen
Senior Assistant Attorney General