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Wednesday, 09 February 2011 20:10

Swain sheriff loses suit against county over money

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A lawsuit waged by Swain County Sheriff Curtis Cochran against the county was shot down in court this week.

Cochran accused commissioners of cutting his pay in 2006 as a form of partisan retribution. State statute protects sheriffs from politically motivated pay cuts, making it illegal for county commissioners to reduce the sheriff’s compensation or allowances following the outcome of an election.

In this case, Cochran argued the all-Democratic board of commissioners retaliated against him after he narrowly beat out a long-time Democratic sheriff.

However, Cochran’s civil suit was thrown out by Judge Allan Thornburg this week following a hearing on Jan. 24. Cochran’s attorney David Sawyer said they plan to appeal the decision to the N.C. Court of Appeals.

The judge did not stipulate why he was dismissing the case, so it’s unclear which of the many defenses put forward by the county was the winning one.

One interesting argument in the case centered around whether county commissioners indeed reduced Cochran’s compensation as he claimed. While it seems like a clear-cut matter — either they cut his pay or they didn’t — it gets a little complicated.

Following an election upset by Cochran in 2006, commissioners put an end to a long-standing slush fund enjoyed by prior sheriffs. Prior sheriffs were paid a flat rate to feed jail inmates and could keep the surplus to use as they pleased, whether it was pocketing the difference or using it to subsidize operations around their office.

When making his case that the lost meal money equated to lost pay, Cochran needed to prove that previous sheriffs made a profit on the meal deal and by how much.

“The problem is we don’t know what that number is,” said Mark Melrose of Melrose, Seago and Lay, who represented the county in the suit.

Melrose said any dollar amount would be “highly speculative.”

The county never made prior sheriffs document what they were actually spending on inmates’ food, but instead dolled out a lump sum with no questions asked.

The lack of records means Cochran could not conclusively show how much previous sheriffs made on the meal deal, and thus how much he supposedly lost when it was taken away.

The previous sheriff got $10 per inmate per day. Sawyer said Cochran has complete records of his cost to feed inmates, so while the surplus made by past sheriffs remains a mystery, it would be easy to calculate what Cochran was due if the old formula was still in effect.

The state statute not only bars commissioners from cutting the sheriff’s pay, but also for reducing his “allowances.” Cochran and the county sparred over whether the inmate meal fund qualified as an “allowance.”

“His contention was that it was an allowance. Our argument was that it was a reimbursement for expenditures,” said Melrose.

Rather than paying out a lump sum, the county now reimburses the sheriff for actual food costs at the jail — but it still counts as a reimbursement, not an allowance, Melrose said.

In a dual claim, Cochran sued the county for breach of contract.  

“Cochran argued there was an implied contract based on the county’s dealing with prior sheriffs, but you can’t piggy back on top of that,” Melrose said.

The county commissioners never “implied” they would continue funding inmate meals the same way they had with prior sheriffs. In fact, government entities legally can’t make verbal promises to do business with someone, Melrose said, but must do business in the open through written public contracts.

The county argued that it had sovereign immunity in this case, meaning it could not be sued for such things. Sawyer said granting the county sovereign immunity in this case renders the state statute moot.

“If soveriegn immunity applies here, it is questionable whether there is any mechanism to enforce that statute,” Sawyer said. “We feel it is an important issue for the Court of Appeals to look at.”

But the county did not hang its hat on that defense alone, and it is ultimately not known whether it was the deciding factor for the judge.

“In order to defend the county, we had to recreate all the events of the food being supplied to the inmates for a long time to see what was the practice, what was paid, how was it paid, was there a profit. It was very fact intensive,” Melrose said.

Mike McConnell, an attorney with the same firm as Melrose, was the primary lawyer for Swain County in the case.

 

Lowest sheriff salary

Auditors had repeatedly warned the county the meal deal wasn’t exactly kosher and should be ended, but it wasn’t until Cochran came into office that commissioners heeded the advice. The county claimed it was simply time to embrace a new, better way of doing business.

At the time, Cochran asked commissioners for a salary increase if they were going to cut out the meal deal.

When Cochran filed the suit he was one of the lowest paid sheriffs in the state with a salary of just $38,000. He’s gotten incremental raises from commissioners since then, bringing his salary to $47,000, but he is still one of the lowest — if not the lowest — paid sheriffs in the state. His salary is the lowest according to a list of sheriff salaries put out by the UNC School of Government, but it shows no data for a few counties. Only two other counties showed sheriff salaries of less than $50,000.

In the end, the county may have been better off giving Cochran more of a raise to offset the loss of the meal deal rather than paying the costs of the lawsuit. County Manager Kevin King said he did not know how much the county had spent in legal costs defending the suit so far.

“To be honest I have not received any bills yet,” said King.

However, Melrose said the county has been billed regularly for work in the suit since 2008.

“There has been a good bit of billing,” Melrose said. “There have been three or four depositions and court hearings and time spent preparing the case. The legal arguments took a lot of time and research.”

King did not return subsequent messages and emails again requesting the cost of the lawsuit to the county. The county hopes to be reimbursed for court costs, but those amount to less than $1,000, a small sum compared to the legal fees for the attorneys.

“The sheriff is willing to talk with the county at any time and would like to resolve this in amicable but if not the appeal is the only other route that we have,” Sawyer said.

When asked whether the county was pleased the suit was dismissed, King directed questions about the lawsuit to county commissioners. Commissioner Chairman Phil Carson did not return a message.

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