When a Wyoming county commission and a county assessor want a private tax attorney to work on a proposed lease that the county attorney has already opined on, who can hire that attorney, who can pay, and is the resulting legal advice a public record?

Plain-English summary

The Lake DeSmet Counties Coalition (LDCC) was negotiating a 99-year water rights lease with the Wyoming Game and Fish Commission. The Johnson County Assessor wanted a detailed tax analysis of the proposed lease. Johnson County Attorney Kenneth DeCock initially declined to do that analysis, calling it premature when the commissioners had said they would not sign the 99-year lease, and offered to request an AG opinion on tax issues instead. The Assessor went ahead and hired a private tax attorney on her own. DeCock then wrote her a "cease and desist" letter and asked the AG for guidance.

DeCock's request had seven questions. AG Gregory Phillips's answers ran like this:

1. Can the Assessor retain private counsel for county business? Not at public expense. Wyo. Stat. Ann. §§ 18-3-201 through 206 (the assessor's powers) do not include hiring counsel. Public officers exercise only the powers conferred on them by law (MacDougall v. Bd. of Land Comm'rs, 49 P.2d 663). Compare with the express authority granted to the Secretary of State, Auditor, Treasurer, and Superintendent in their respective statutes.

2. Can the Board pay for legal services provided to the Assessor? Only in the narrow circumstances that authorize the Board itself to hire counsel. The Assessor's request did not satisfy any of those.

3. Can either the Board or the Assessor use personal funds to hire counsel for county business? Yes. Wyoming law does not prevent any citizen, including a public official, from spending personal funds on legal advice.

4. Can the Board or the Assessor obtain legal services for free? The opinion did not directly answer this, but on the framework laid out, the same questions would apply: who is hiring, in what capacity, and for what purpose.

5. Can the Assessor hire counsel as a private citizen on county business? Yes. Public officials remain private citizens with individual rights.

6. What are the remedies if any of the above is improper? The opinion did not enumerate remedies, focusing instead on the underlying authority questions.

7. Are documents and opinions from private counsel public records? Likely yes for any work received in furtherance of official duties, but only if not "privileged or confidential by law" (Wyo. Stat. Ann. § 16-4-201(a)(v)). Whether the assessor waived privilege depended on facts the AG could not resolve.

The biggest move was Phillips's reading of Wyo. Stat. Ann. § 18-3-302(c). That statute says nothing in § 18-3-302 prevents the commissioners "from employing one (1) or more attorneys to appear and prosecute or defend or assist the county and prosecuting attorney in any action or proceeding." The 1900 Wyoming Supreme Court decision Appel v. State ex rel. Shutter-Cottrell read that statute as authorizing the commission to hire assisting counsel even where the county attorney was not absent or conflicted, so long as the board recorded the nature and necessity of the employment. The 1986 AG opinion (No. 86-027) had read § 18-3-302(c) much more narrowly, limiting commission-hired private counsel to the "absent, conflicted, or refusing to act" situations covered by § 18-2-110. Phillips concluded the 1986 opinion had misread Appel and overruled it.

Phillips also read § 18-3-302(c) as not requiring the county attorney's consent; the commission could hire assisting counsel even over the county attorney's objection, so long as the assistance was sufficiently connected to a "civil proceeding" or "civil action." The exact contours of "civil proceeding" remained an open question, since dictionaries treat it as a lawsuit or formal litigation, but Wyoming's parallel statutes use both "proceeding" and "suit," suggesting the terms might mean different things.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Wyoming counties are governed by an elected board of commissioners, with several elected officers (sheriff, assessor, treasurer, county clerk, county attorney) operating in their constitutionally and statutorily defined lanes. The county attorney represents the county in court (Wyo. Stat. Ann. § 18-3-302) and provides legal opinions on request to county officers (§ 18-3-302(a)(i), (ii)). The general rule: the county attorney is the county's lawyer.

Three exceptions to that general rule:

1. Substitute counsel under Wyo. Stat. Ann. § 18-2-110: the commission may employ counsel "in the absence of the county attorney." The Wyoming Supreme Court in Casper Nat'l Bank extended this to where the county attorney was conflicted or refused to act.

2. Assisting counsel under Wyo. Stat. Ann. § 18-3-302(c): "Nothing in this section shall be construed to prevent the county commissioners 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. In such case, the nature and necessity of the employment shall appear in the record of the board."

3. Statutory limits in Wyo. Stat. Ann. § 18-3-520: "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."

The lead case, Appel v. State ex rel. Shutter-Cottrell, 61 P. 1015 (Wyo. 1900), arose when the Sweetwater Board of County Commissioners hired a private attorney to assist the county attorney in defending a mandamus action. The chairman of the board opposed paying the attorney's bill, arguing the commission had no power to hire private counsel except in the county attorney's absence. The Wyoming Supreme Court rejected that, reading § 18-3-302(c)'s predecessor as conferring authority on the board to hire assisting counsel beyond the absent-county-attorney case. The court added that the necessity determination was for the board, not subject to review absent fraud.

The Public Records Act at Wyo. Stat. Ann. §§ 16-4-201 et seq. defines a public record as information accepted or obtained by an agency or political subdivision in furtherance of its official function and transaction of public business that is not privileged or confidential by law. The Administrative Procedures Act at § 16-3-101(b)(i) defines "agency" to include officers and employees of a county.

Common questions

Q: When can a Wyoming county commission hire private counsel to represent the county?
A: Two narrow situations. First, under § 18-2-110, when the county attorney is absent, conflicted, or refuses to act, the commission may hire substitute counsel to defend it. Second, under § 18-3-302(c) as read in Appel, the commission may hire assisting counsel to "appear and prosecute or defend or assist the county and prosecuting attorney" in any action or proceeding, civil or criminal, with the nature and necessity recorded in the board's minutes.

Q: Does the county attorney have a veto over the commission's decision to hire assisting counsel?
A: Under the 2012 reading, no. Phillips read § 18-3-302(c)'s phrase "nothing shall be construed to prevent the county commissioners from employing" to include "nothing, including the county attorney's objection." Under Appel, the necessity question is for the board to decide. The 1986 AG opinion that gave the county attorney effective veto power was overruled.

Q: Can a county assessor hire private counsel using county funds?
A: No. The assessor's statutes (Wyo. Stat. Ann. §§ 18-3-201 through 206) do not give that authority. Compare with the express authority given to the Secretary of State, the Auditor, the Treasurer, and the Superintendent of Public Instruction. MacDougall v. Bd. of Land Comm'rs sets the rule that public officers can exercise only the powers conferred on them by law.

Q: Can a public official spend personal funds on legal advice about official duties?
A: Yes. Wyoming law does not prevent any citizen, including a public official, from spending personal money on legal advice. Public officials retain individual rights as private citizens.

Q: Are private legal opinions obtained by a county officer public records?
A: Likely yes for any work received in furtherance of the officer's official duties, since counties (including individual officers) are political subdivisions or "agencies" under the Public Records Act and Administrative Procedures Act. But the documents are not public records if "privileged or confidential by law" under § 16-4-201(a)(v). Whether the assessor in this case waived attorney-client privilege depended on facts the AG could not resolve, so the opinion ended its analysis there.

Q: What does "civil proceeding" mean in § 18-3-302(c)?
A: The opinion left this open. Dictionaries equate "proceeding" with a lawsuit or formal litigation. But Wyoming's parallel statutes at § 18-2-110 use "legal proceedings" and § 18-3-302 also uses "suits" and "actions," suggesting the terms might cover somewhat different things. The opinion noted commission policy meetings and public meetings might or might not qualify, depending on whether the legal advice was being prepared for an actual or anticipated formal proceeding.

Q: How did this opinion change AG Formal Opinion 86-027?
A: It overruled it. The 1986 opinion had read § 18-3-302(c) to require the county attorney's absence, conflict, or refusal as a precondition for the commission hiring private counsel, and read it through Appel incorrectly by quoting an incidental sentence rather than the holding. Phillips concluded that misread Appel and the statute, and noted that Appel expressly authorized commission-hired counsel to assist (not replace) the county attorney.

Citations and references

Wyoming statutes:
- Wyo. Stat. Ann. § 9-1-307 (Secretary of State counsel authority)
- Wyo. Stat. Ann. § 9-1-403(c)(viii) (Auditor counsel authority)
- Wyo. Stat. Ann. § 9-1-409(d) (Treasurer counsel authority)
- Wyo. Stat. Ann. § 9-1-603(b) (Governor counsel authority)
- Wyo. Stat. Ann. § 16-3-101(b)(i)
- Wyo. Stat. Ann. § 16-4-201(a)(iv), (v)
- Wyo. Stat. Ann. § 18-2-110
- Wyo. Stat. Ann. §§ 18-3-201 through 206
- Wyo. Stat. Ann. § 18-3-302
- Wyo. Stat. Ann. § 18-3-302(c)
- Wyo. Stat. Ann. § 18-3-520
- Wyo. Stat. Ann. § 21-2-202(a)(xix)(J) (Superintendent counsel authority)

Wyoming cases:
- Appel v. State ex rel. Shutter-Cottrell, 61 P. 1015 (Wyo. 1900)
- Bd. of Comm'rs of Natrona Cnty. v. Casper Nat'l Bank, 105 P.2d 578 (Wyo. 1940)
- MacDougall v. Bd. of Land Comm'rs of Wyo., 49 P.2d 663 (Wyo. 1935)
- Ultra Res., Inc. v. Hartman, 2010 WY 36, 226 P.3d 889

Prior AG opinion overruled:
- Wyoming AG Formal Opinion 1986-027 (Dec. 8, 1986)

Source

• Landing page: https://ag.wyo.gov/formal-opinions
• Original PDF: https://drive.google.com/file/d/0B-uookG6TajHQVpQRWtuYTFDYmc/view?resourcekey=0-B3KCzJOXXyLBN2xTFHyNfw

Original opinion text

Office of the Attorney General

Governor Matthew H. Mead
Attorney General Gregory A. Phillips
Chief Deputy Attorney General Peter K. Michael

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

October 22, 2012
Formal Opinion 2012-001

Kenneth DeCock
County and Prosecuting Attorney
98 S. Main Street, Suite A
Buffalo, WY 82834

RE: Employment of Private Counsel by County Officials

Dear Mr. DeCock:

You have requested a formal opinion answering seven questions concerning the respective powers of certain county officers:

1. Can the Assessor retain private counsel to provide legal services regarding county business?
2. May the Board lawfully use public funds to pay for legal services provided to the Assessor by the private attorney?
3. May the Board and/or the Assessor use personal funds to employ private counsel to provide legal services for county business?
4. May the Board and/or the Assessor obtain private legal services for county business if the services are provided at no cost?
5. May the Assessor, as a private citizen, obtain private legal services regarding county business?
6. If any of the previous questions are answered in the negative, what are the remedies for such actions?
7. Are documents and/or opinions the Assessor and/or the Board obtained from private legal counsel public records?

Background

Lake DeSmet lies within Johnson and Sheridan Counties. The Lake DeSmet Counties Coalition (LDCC) owns and operates the portion of the lake in Johnson County. The LDCC is comprised of three board members from each county, including one county commissioner from each county. The LDCC has its own legal counsel, which prepared drafts of a proposed lease at issue.

Sometime before November 2011, the Wyoming Game & Fish Commission began negotiating with LDCC to lease water rights in Lake DeSmet. In November 2011, a Johnson County Commissioner told you that a proposed lease would soon be ready for discussion.

In early March 2012, the Johnson County Assessor asked that you provide a legal analysis of the tax implications of the proposed lease. She provided you a summary of the proposed lease's terms. On March 19, 2012, you wrote her a short letter, citing Wyo. Stat. Ann. § 39-11-105(a), and preliminarily focusing the tax question on the proposed use of the water in the lake.

On an unspecified date in March 2012, you learned that the proposed lease to Game & Fish was for a 99-year term. The Johnson County Commissioners told you that they opposed the 99-year term but Game & Fish insisted upon it. On April 17, 2012, the Commissioners asked you at a board meeting to review the proposed lease, which included the 99-year term. You responded with a "very general analysis of the proposed lease" in your bi-monthly report to the commissioners.

On May 27, 2012, you wrote a second letter to the assessor giving her your "preliminary legal findings regarding possible taxation issues the lease created." Sometime near May 30, 2012, you spoke to the assessor, who insisted that you provide a more detailed analysis whether the proposed lease would make the lake taxable. Because the commissioners had told you that they would not agree to the 99-year lease term, and because you "lacked the resources to research a theoretical issue," you declined to provide the more detailed analysis, instead offering to request an attorney general's opinion on the taxability issue.

On June 5, 2012, at a public forum on the proposed lease, the Johnson County Commissioners again said that they would oppose any lease with a 99-year term. On June 11, 2012, the assessor asked that you support her in making a request for private legal counsel. On June 13, 2012, you wrote an email to the assessor declaring the request for counsel "premature."

On June 19, 2012, you learned that the assessor had already obtained legal services from a private tax attorney. On June 22, 2012, you wrote letters to the assessor demanding that she "cease and desist all contact with outside counsel" for which she had sought advice "on county business," and you wrote the county commissioners advising them of "the possible consequences of paying for legal services not obtained in accordance with Wyoming state statute."

Analysis

A. Wyoming Statutes and Case Law

1. Hiring Private Attorneys in the Place of County Attorneys

From statehood forward, Wyoming's statutes have provided that county attorneys shall represent the counties in court:

(a) Each county attorney shall:

(i) Act in all courts in the state as legal counsel for his county or counties and its officers acting in their official capacity and prosecute or defend all suits instituted by or against his county or counties or its officers;

(ii) Give his opinion in writing upon the request of any county officer of his county or counties, without fee, upon all questions of law relating to the duties of such officer and file and preserve in his office a copy of all such opinions[.]

Wyo. Stat. Ann. § 18-3-302. Although the county commission governs the county, the general rule is that the county attorney is its exclusive attorney in our courts.

Yet our statutes have always provided an exception to this rule. A county commission may hire a private attorney to represent the county in court when the county attorney is absent:

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.

Wyo. Stat. Ann. § 18-2-110. See also Bd. of Comm'rs of Natrona Cnty. v. Casper Nat'l Bank, 105 P.2d 578, 582 (Wyo. 1940) (clarifying that under predecessors to Wyo. Stat. Ann. §§ 18-2-110 and 18-3-302(c) the county commission may hire a private attorney to represent the county when the county attorney is absent or refuses to act); Wyo. Stat. Ann. § 18-3-520 (limiting the commission's authority to employ counsel in this fashion to the reasons allowed by Wyo. Stat. Ann. § 18-2-110 and then only when "the nature and necessity of such employment shall appear in the record of the board.")

2. Hiring Private Attorneys to Work with County Attorneys

On a separate track, our statutes also allow a board of county commissioners to hire private counsel to assist (not replace) the county attorney in court or elsewhere:

Nothing in this section shall be construed to prevent the county commissioners of any county or consolidation of counties 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 or consolidation of counties in any action or proceeding, whether civil or criminal. In such case, the nature and necessity of the employment shall appear in the record of the board or boards.

Wyo. Stat. Ann. § 18-3-302(c). The lead case interpreting this statute is 112 years old, but because it remains the most direct authority we discuss it at length below.

In Appel v. State ex rel. Shutter-Cottrell, 61 P. 1015 (Wyo. 1900), the Court reviewed a case that had begun when a private citizen brought a mandamus action to compel the Sweetwater Board of County Commissioners "to designate the Rock Springs Miner, a newspaper, as the official paper of said county." After getting permission from two county commissioners, the county attorney recruited a private attorney to help him defend the suit. The case was tried, and the county prevailed. Two weeks later, the private attorney submitted his bill. At a meeting the next month, the board rejected the bill. The next day, the board reversed itself, finding that the "county attorney, by the advice of a majority of said board, did employ [the private attorney] to assist the defense of the suit."

On appeal, the board chairman opposed paying the private attorney's bill, arguing two points: (1) that the board itself had not hired the private attorney but instead two commissioners had done so without authority, and (2) that in cases where the county or the board is a party, the board cannot hire private counsel unless the county attorney is absent.

In addressing these arguments, the Court looked to the general powers of counties and their boards of commissioners. It noted that "[t]he county has authority to make all contracts, and do all other acts in relation to the property and concerns of the county necessary to the exercise of its corporate or administrative powers." It found that the board of county commissioners exercises county powers and is "empowered generally to represent the county, and have the management of the business and concerns of the county, in all cases where no other provision is made by law."

Examining Wyo. Rev. Stat. § 1104 (1900) (the substantial equivalent of present-day Wyo. Stat. Ann. § 18-3-302(c)), the Court found that "[i]t is reasonably clear that the employment referred to is not limited to occasions when the county attorney is absent," and noted that this section intended to "confer authority upon the board to employ an attorney or attorneys." 61 P. at 1019. The Court rejected the argument that Wyo. Rev. Stat. § 1078 (the predecessor to § 18-2-110), which allowed the board to hire its own counsel when the county attorney is absent, defeated this additional authority. Instead, the Court found that § 1078 "does not expressly prohibit or negative the right of such employment in other cases."

The Court next addressed whether the board had undertaken all necessary steps to hire the private attorney. Although the private attorney had already provided his services before the full board formally approved his bill, the Court found that the full board had ratified "the acts of the two commissioners in advising and consenting to the employment." Additionally, the Court found that the board record showed the nature and necessity of the employment, observing that the board's resolution record described the suit and the character of services rendered and stated that the employment was necessary to defend the suit successfully.

B. Johnson County Commission's Authority In This Case

We are uncertain whether the commission wanted to hire private counsel to assist you in providing the board tax advice and if so what you told the board. We believe that had the commission wanted to hire a tax attorney to assist you in advising it on any issue in an existing "civil proceeding" or "civil action" — whether you desired the assistance or not — the commission could do so. The commission could then receive and consider the advice from you and the tax attorney assisting you and decide the county's best course. The board is responsible to make good decisions on behalf of the county, and in educating itself for a set civil proceeding or action it may insist on a full range of advice. Whether money so spent is well spent is an issue that the statutes leave to the voters.

We do not know whether the commission had a basis to believe that the lease negotiations would lead to a "civil proceeding." In fact, the statute provides little direction on the meaning of "civil proceeding." Dictionaries generally define "proceeding" as a lawsuit or legal action or litigation. See Ultra Res., Inc. v. Hartman, 2010 WY 36, ¶ 153, 226 P.3d 889, 936 (Wyo. 2010) (quoting Black's Law Dictionary 1324 (9th ed. 2009); Webster's Third New Int'l Dictionary 1807 (2002)). A "civil proceeding" under Wyo. Stat. Ann. § 18-3-302(c) might well be broader than this — after all, § 18-2-110 refers to "legal proceedings" and § 18-3-302 also refers to "suits" and "actions." Presumably, different terms have at least somewhat different meanings.

If a court found that the private attorney's assistance here was sufficiently connected to a civil proceeding, the commission, under Appel, likely could even now on its own behalf approve the earlier hiring. Moreover, under Appel, the board's required finding of necessity likely could come any time before it pays the bill. With our uncertainty regarding the underlying facts and the lack of precedent on the meaning of "civil proceeding," we cannot go beyond advising on the proper analytical framework.

C. The County Assessor's Authority to Hire Private Counsel Apart from the Board

While statutes authorize county commissions to hire private counsel in defined circumstances, no statute expressly authorizes a county assessor to do so. Compare Wyo. Stat. Ann § 18-3-201 through -206, with Wyo. Stat. Ann §§ 9-1-307 (secretary of state authorized to hire counsel to review contracts and perform other duties as directed); 9-1-403(c)(viii) (same for state auditor); 9-1-409(d) (same for state treasurer); 21-2-202(a)(xix)(J) (same for state superintendent of public instruction); 9-1-603(b) (authorizing governor with approval of the attorney general to "retain qualified practicing attorneys to prosecute fee-generating suits for the state if expertise in a particular field is desirable.") "The law is well settled that public officers have and can exercise only such powers as are conferred on them by law." MacDougall v. Bd. of Land Comm'rs of Wyo., 49 P.2d 663, 667 (Wyo. 1935).

D. County Officials's Ability to Hire Private Counsel with Their Personal Funds

We see nothing in Wyoming law that would preclude any citizen from spending his or her own money to obtain legal advice, whether on "county business" or not. Public officials remain private citizens with individual rights.

E. Public Records Act

Under the Public Records Act, "public records" include information accepted or obtained by an agency or political subdivision of the state "in furtherance of its official function and transaction of public business which is not privileged or confidential by law." Wyo. Stat. Ann. § 16-4-201(a)(v). "Political subdivision" as defined by the act includes every county of the state, which presumably includes the individual officers and employees of the county through which the county operates. Wyo. Stat. Ann. § 16-4-201(a)(iv). Even so, because the Act does not define "agency," we have in other cases looked to the Administrative Procedures Act, which defines "agency" as including an officer or employee of a county. Wyo. Stat. Ann. § 16-3-101(b)(i). Although no court has yet blessed this approach, we believe that a county assessor is likely subject to the Public Records Act as either part of a political subdivision or as an "agency."

Even if the assessor paid the tax attorney with her personal funds, we still believe that she received his legal advice "in furtherance of [her] official function and transaction of public business." Yet the private attorney's written legal advice still is not a public record if it is "privileged or confidential by law." Wyo. Stat. Ann. § 16-4-201(a)(v). We do not know whether the assessor has waived this privilege by word or action, and accordingly we end our analysis here.

F. Wyoming Attorney General Opinion No. 86-027

In 1986, unlike the past several years, the Attorney General's Office routinely issued its opinions as formal opinions. A law student authored 1986 Opinion No. 86-027, and a Senior Assistant Attorney General approved it.

The 1986 opinion answered the question "May a Board of County Commissioners legally hire independent counsel to act on behalf of the county when the county and prosecuting attorney is available and willing to represent the county in all legal matters and to prosecute or defend all suits by or against the county?" with: "No. A Board of County Commissioners has no authority to employ private counsel to advise the Board and other county officers, except to the extent that the county and prosecuting attorney is absent, refuses to act or has a conflict of interest which precludes him from representing the county."

Although the 1986 opinion cites Appel, it misses the point and holding of that case. It disposes of Appel in one sentence by quoting an incidental sentence as if it were the case's holding: "In Appel, the court stated that 'in actions where the county or board are parties, the board has no authority to employ an attorney, except in the absence of the county attorney.'" Nowhere does the opinion acknowledge Appel's holding that the board of county commissioners had power to hire private counsel to assist the county attorney in defending the mandamus claim against the county.

In addition, the opinion misconstrues what satisfies the statute's requirement that the board record reveal the nature and necessity of the employment. The opinion says that this requirement limits a board's discretion to "special cases" — those where a vacancy exists in the office due to absence or illness, or where the attorney refuses to act or has a conflict of interest. This ignores Appel's direction that "[a]s to the necessity for that character of employment, the board must and should be the judge, and their determination thereof is not open to question, except upon an allegation and showing of fraud." 61 P. at 1019.

Although we are reluctant to overrule any earlier opinion, the incorrect legal analysis and conclusions in Opinion No. 86-027 require that we do so. Even though the opinion plainly stands contrary to Appel, we understand your reliance on the opinion and why you provided it to the county officials as support for your position.

If we can be of further assistance, please feel free to contact us.

Respectfully yours,

Gregory A. Phillips
Attorney General

Ryan T. Schelhaas
Senior Assistant Attorney General

Jessica Y. Frint
Assistant Attorney General