Henry County Attorney questions supervisor spending

MT. PLEASANT — Henry County Attorney Darin Stater spoke with the Henry County Board of Supervisors during last week’s meeting about payments made by the supervisors to outside legal counsel on behalf of Henry County Sheriff Rich McNamee and Deputy Carlos Lopez.

“Today we’re here to discuss some invoices presented by Sheriff Rich McNamee and approved by the Board of Supervisors for legal services provided to Sheriff McNamee and Deputy Carlos Lopez after the sheriff, without the knowledge of my office or the Board of Supervisors sometime prior to Dec. 14, 2023, retained the services of a private attorney,” Stater informed the board.

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The invoices in question detailed over $3,000 of outside legal counsel expenses from Feb. 12 through May 21 of this year.

“All of those claims were approved by the board, all were paid with public funds,” Stater said.

Stater stated that he made the board aware of an issue in January before any approvals of payment were made. He read this email to the board at the meeting. In the email, Stater claims these legal services were obtained by McNamee and Lopez in response to his decision to place Lopez on a Brady-Giglio list.

According to a document entitled “Brady-Giglio Supplemental and Background Information,” from the Iowa Legislature website, “In general, a Brady or Giglio list is a list compiled usually by a prosecutor’s office or a law enforcement agency containing the names and details of law enforcement officers who have sustained — confirmed — incidents of untruthfulness, criminal convictions, candor issues, or some other type of issue which places the officer’s credibility into question.”

The Southeast Iowa Union is currently pursuing additional public record requests to acquire more information pertaining to the instance that led to placing Lopez on this list, however, that information is not yet available.

Stater’s objective speaking to the Henry County Board of Supervisors focused on the acceptability of the Sheriff and Deputy hiring outside counsel in connection with this action and supervisors approving paying for this counsel with county funds.

According to Stater, when he became aware of these invoices, he not only reached out to the supervisors, but also conducted research including inquiring about permission for services from McNamee and the supervisors and seeking additional guidance from the Iowa Attorney General’s Office.

Stater recounted that when asking McNamee if he received permission from the supervisors to obtain outside counsel, McNamee said the supervisors were aware of impending fees.

“I approached Supervisor White and supervisor Moeller on Jan. 3, 2024,” Stater read from his email to the supervisors. “To ask if the board had approved the hiring of outside counsel, please correct me if my recollection is faulty, but I believe Supervisor White told me that the sheriff had called him a day or two prior to ask if Mr. White objected to the sheriff paying for outside counsel out of the sheriff's budget. Mr. White told the sheriff that his budget was his to spend as he saw fit.”

Stater explained the issue with these responses came from the indication that McNamee did not acquire this legal counsel through the correct means. The Iowa Attorney General’s Office clarified that according to Iowa Code 331.754.4 the Board of Supervisors may only appoint an attorney to act as a county attorney in civil proceedings if the county attorney and all assistant county attorneys are disqualified because of a conflict of interest for performing duties and conducting official business.

“It is a fairly big step to appoint another attorney to represent an elected official,” Stater read from an email sent to him from Iowa’s Prosecuting Attorneys Training Coordinator Jessica Reynolds. “Your Board of Supervisors should think through that clearly and be ready for other elected officials to ask for the same thing. Is the board going to consider it a conflict and pay for outside counsel every time someone disagrees with you? How much money do they plan to budget for outside counsel?”

In order for the Board of Supervisors to pay for outside legal counsel like they did, Stater claims, they needed to take official action to approve outside counsel. Without this official decision, the county should not pay for these fees. Stater shared information with the board from multiple cases that shared similar findings.

He further clarified with the Board of Supervisors that they did not take action on this code despite paying these invoices.

Stater even read a response from the County’s Human Resources office which told the Board of Supervisors, “exceptions are not applicable in cases such as the present one where the disputed matter did not involve litigation in a pending court case. Instead, Home Rule authority authorizes the county attorney to request the Board of Supervisors to appoint replacement. Correspondingly, neither the Board of Supervisors nor any other county official is independently authorized to appoint a replacement for the county attorney.”

“Finally, because such an appointment is illegal, the Board of Supervisors is not authorized to pay a claim. In this case it involved a county sheriff, a claim by the county sheriff for legal fees incurred by a private attorney hired by the sheriff to represent him in a manner in which the county was already represented by the county attorney or a duly appointed replacement,” Stater read.

After laying out the background information, Stater asked the supervisors what public purpose the money spent served. Additionally, he questioned how closely they looked at the invoices and if they knew what they approved paying.

“We knew it was outside counsel for a personnel issue,” Supervisor Chad White answered Stater.

When Stater pressed White about the legal basis for approving the claims, White claimed the supervisors were working under Stater’s legal opinion. White stated that he thought the claims could be paid through the Sheriff’s budget funds after receiving the email in January from Stater which outlined Jessica Reynolds’s response and Iowa Code 331.754.4.

Supervisor Chair Greg Moeller stated that the supervisors did not receive invoices with dates itemizing services. Moeller claimed they were not aware of many of the details pertaining to these invoices.

Henry County Auditor Shelly Barber, however, stated that the supervisors were made aware of the invoices and specifically asked if they should be paid.

“So, you were made aware that they were there, and the board can always request to see the itemized bill,” Barber stated. “They’re made aware of things that are out of line. We bring those down and they only receive a line-item type thing that has two lines on it: what account the claim was paid out of, who the payee is, what it’s for, and the dollar amount. Then if they choose to review, they can review all the lines if they want us to bring all of them down.”

According to Barber, these are not normally reviewed, unless they ask for the further itemized bills.

“How did the board get to approving those claims after receiving my email with my opinion that 331.754.4 has to be followed and hasn't been?” Stater asked. “The Attorney General agreed with me there was a Supreme Court case attached to it that said the same thing. I'm just trying to get to how these were paid.”

“We just signed off on them,” Moeller responded to the question.

While Stater’s question about how the invoices were paid despite his communication with the board was not fully answered at the Board of Supervisors meeting Thursday morning, June 6, he did walk away from the discussion with affirmation from the board that they would not approve any further invoices for such services.

The board agreed with Stater that they sent an email the week before this meeting to McNamee stating they would not long pay these claims.

“I am here as your county attorney,” Stater addressed the board. “This is the Iowa Supreme Court stating this. This is the Attorney General saying this. This is me saying this. … In this case, there is no civil action. There is nothing to represent the board for. I don't know where the disconnect is coming from. This isn’t a disagreement. This isn’t a conflict. This is the law.”

Stater further stated that his actions to “enforce the law and exercise his ethical duties and protect the public does not create a conflict.”

“I can come in here and tell you I disagree that two plus two equals four. It doesn’t create a legitimate claim. It just means that I am bad at math,” Stater said. “I want your assurance that if Sheriff McNamee presents another claim for legal bills, they will not be paid.”

Asking for assurance from each supervisor, White, Moeller, and Marc Lindeen, each affirmed they would not agree to pay any further claims.

Stater informed the board he would continue to discuss the matter with the Attorney General’s Office and other county attorneys “to determine proper legal course of action to be taken.” He promised to continue to be in contact with the board and to appear on the agenda again.

Comments: AnnaMarie.Ward@southeastiowaunion.com