Eight county residents file lawsuit over County Attorney replacement
Update: After the printed San Juan Record deadline San Juan County Commission has called an emergency meeting for Thursday, May 5, to consider appointment of one of the four original applicants.
Eight county residents including two applicants for the acting county attorney position have filed a lawsuit against the San Juan County Commission, Clerk, and staff in regards to the appointment of an interim county attorney.
On April 19 the commission passed a resolution by a vote of 2-1 to allow Utah attorneys that live outside of the county to apply for the acting county attorney position.
Commissioners Kenneth Maryboy and Willie Grayeyes voted in favor of the resolution, Commissioner Bruce Adams voted against.
The suit filed in seventh district court alleges that “the county legislative body openly rejected all four applicants in violation of state law”.
The plaintiff's request asks that the court declare that the applications received by San Juan County were valid and order the county commission to appoint one of the four applicants.
Among the plaintiffs are applicants for the position Craig Halls and Brittney Ivins, as well as county residents Kim Henderson, Kelsey Saunders, Britt Barton, Jerald Bradford, Norman Johnson, and Colleen Cayes.
As part of the May 3 commission meeting, Commissioner Willie Grayeyes submitted a letter noting that the county needed to retain an outside attorney to represent the named defendants.
The letter also stated that the commission and San Juan County Democratic Party have both acknowledged the importance of the County attorney position.
The letter states that “the San Juan County Democratic Party notified the commission that due to the ‘insufficiency of bona fide applicants, the statutory option set forth in UCA 20a-1-509,2(3) could not be exercised’ by the Party. Thus it was the Commission’s statutory option to solicit additional applications for the vacancy”
The office of the Utah Attorney General has also weighed in on the matter.
Brian L. Tarbet Chief Civil Deputy with the Utah General’s attorney's office submitted a letter dated May 2 to the county commission, county clerk, and county administrator concurring with the opinion the county received from Kane County Attorney Robert Van Dyke.
The letter states that “four individuals responded to the letter sent by the County Clerk in the manner directed by the County Clerk”.
“The County Clerk properly exercised his discretion in identifying how a qualified individual could ‘apply’ and then designated the four interested individuals as ‘applicants.’”
The office also urged the commission to appoint one of the four applicants.
The former San Juan County attorney, Kendall Laws, resigned as of March 28, 2022. As an elected position, the county attorney seat is up for election this coming November.
Republican candidate Alex Goble will run unopposed in November as he was the only attorney to file for candidacy in the upcoming election.
The county must fill the vacant county attorney position with an acting county attorney until the attorney elected in November takes office on January 1, 2023.
According to state code, for a vacant county attorney position in a county where less than 15 licensed attorneys reside, the county clerk must send a letter to all attorneys in the county informing them of the vacant position, invite them to apply, and inform them they have ten days from the day after the letter was sent to apply.
If three or less attorneys in the county apply for the position, The commission can choose to consider attorneys who do not reside in the county.
County Clerk, Lyman Duncan sent a letter to the five attorneys who reside in the county informing them of the open position and inviting them to apply stating, “You have 10 days from the date of this letter to submit your declaration of candidacy.”
Four of the five attorneys, including Goble, responded to Duncan declaring their interest in candidacy for the role by the deadline of March 26, 2022.
Some applicants sent no more than one sentence expressing their interest, which met the requirements set by Duncan.
Pursuant to state code, the county clerk then must submit the applications to the county central committee of the same political party of the previous officeholder to choose the acting attorney.
As Laws was elected as a Democrat, Duncan sent the names of the four attorneys to the Democratic Party to be reviewed.
The party then asked each attorney for a letter of interest and their current curriculum vitae (CV). Three of the four candidates provided a CV by the party’s deadline of April 4, 2022.
The Democratic Party county leadership sent a letter to the San Juan County Commission stating an insufficient amount of “bona fide” applications were received for the position, thus the county may allow attorneys that reside outside of the county to apply for the position.
Duncan responded to the email stating, “The Clerk/Auditor’s responsibility was to ensure that those who applied met the requirements and applied in a manner he requested.” Meaning, that the requirements of an application to be considered are set by the county clerk.
During the April 19 meeting, Commissioner Grayeyes noted lines of the state code that mention applications be submitted and questioned why a one-sentence notice of interest would be considered an application.
County staff requested the legal opinion of Kane County Attorney Robert Van Dyke concerning the matter and resolution.
Van Dyke responded with a letter stating, “If the county were to proceed with this process and appoint an attorney outside of the four original applicants, the action would be unlawful and likely would be void.”