By Rob Ollikainen and Paul Gottlieb
Peninsula Daily News
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The three commissioners Tuesday unanimously approved a professional services agreement with the Law Office of Kenneth W. Bagwell Inc. of Silverdale to represent department Director Sheila Roark Miller against claims she illegally altered, destroyed or backdated public records.
The county will pay Bagwell $250 per hour — or $2,000 for an eight-hour day — for the conflict representation and $300 for each court appearance through the end of this year, unless the parties agree to terminate the agreement sooner, to represent Roark Miller.
There is no cap on the contract.
Following an investigation by county Human Resources Department lawyer Akin Blitz of Portland, Ore., and his investigator, Ken Bauman, seven charges were identified, including four felonies, that the state Attorney General's Office could consider filing.
In a cover letter, Blitz said a decision on whether to prosecute Roark Miller “is reserved for the proper prosecutorial authorities.”
The report has not been made public.
The potential charges, which were referred to state Assistant Attorney General Scott Marlow, are injury to a public record, injury to and misappropriation of a record, offering a false instrument for filing or record and misappropriation and falsification of accounts by a public officer, all felonies; and official misconduct, false report and public officer making false certificates, a gross misdemeanor.
Roark Miller, who has denied any wrongdoing, did not attend the commissioners' work session or business meeting Tuesday.
She said in a voice message left on her office phone that she will be returning to the office Monday.
Bauman, who began his investigation March 1, normally would charge $340 an hour but has agreed to discount that rate by 10 percent, Blitz said in an earlier interview.
That means the county will pay up to $306 an hour — or $2,448 for an eight-hour day.
Blitz did not return a call for comment, and Human Resources Director Rich Sill returned from a week off on Tuesday and was unaware if Blitz had submitted a bill, Sill said.
Marlow did not return a call for comment Tuesday.
The professional services agreement that commissioners approved Tuesday was negotiated by Clallam County Chief Civil Deputy Prosecuting Attorney Mark Nichols.
“The county is paying for this attorney,” Nichols said after the work session.
“He's an independent practitioner. He's been retained by the director [Roark Miller] upon approval of the county for purposes of providing her with legal representation as to matters involving the normal course and scope of her employment in relation to the personnel investigation that's occurring within her department.”
Commissioners did not debate the agenda item in their work session, but thanked Nichols for negotiating it.
The board did not discuss the matter before approving it in the subsequent business meeting.
Nichols said the decision to hire Bagwell followed outreach to the Washington State Bar Association's ethics hotline and a review of the ethical rules that govern the practice of law in the state.
Moreover, it took into account the statutory requirement that the county Prosecuting Attorney's Office serve as the legal advisor to the county.
“Taking all of those variables into consideration, it's a correct statement that the county has the duty of representation to the director as to matters that fall within the course and scope of her employment,” Nichols said.
In a March 5 letter, Nichols notified Roark Miller of the existence of one or more whistle-blower complains against her.
It explained that a conflict of interest could arise if the prosecutor's office were placed in the position of advising Roark Miller in the personnel investigation.
“Although we normally serve as her legal advisor, it's foreseeable that she may have questions, and our office's answering those could serve to create a conflict as to the county later,” Nichols said.
“Those's so many hypothetical things that could occur here. So what we advised her in that letter was that should she feel the need to retain counsel, we were authorizing her to do so, and further, telling her that the county would pay the fees of that counsel so long as the advice rendered was as to matters that go in the normal course and scope of her employment.”
The county Prosecuting Attorney's Office continues to advise the Community Development department on day-to-day land-use matters unrelated to the investigation.
The personnel investigation was prompted by an overtime complaint and has since expanded in scope.
Employees in the department were interviewed about a whistleblower complaint that a supervisor asked an employee to work overtime on a Sunday and not mark down the time, County Administrator Jim Jones has said.
Reporter Rob Ollikainen can be reached at 360-452-2345, ext. 5072, or at firstname.lastname@example.org.