Commissioner appointment dispute prompts questions about use of county resources for litigation

A dispute over the process to fill a vacant Lackawanna County commissioner seat dominated part of the March 19 meeting as commissioners, the county solicitor and members of the public debated whether county resources should be used to pursue litigation over the selection process.

Don Frederickson, county solicitor, told the board he was approached about conflicting procedures for filling a commissioner vacancy. "We have the Home Rule Charter which specifies one way of doing it, and we have a code of judicial conduct, which specifies a whole separate method," Frederickson said, explaining his concern that proceeding under one procedure could invite later court challenges and render an appointment vulnerable.

Commissioner Chris Chermack said a petition was filed on behalf of Lackawanna County and that Commissioner Bill Gahan joined the filing. Chermack said the issue is whether county funds or county personnel should be used for litigation that had not been approved in a public vote. "There was never an executive session to discuss any litigation. There was never a work session of the commissioners to discuss this," Chermack said. He said the decision to pursue the petition appeared to have been made unilaterally.

Commissioner Gahan responded that under the state county code the solicitor has authority to commence litigation when it is in the county's interest and that the measure was intended to secure a timely judicial determination about the correct process. He and others said the goal was to avoid an appointment that could later be invalidated, which could create operational uncertainty for county governance.

Questions about billing and payment authority were raised. County counsel and staff said the county has an existing contract with the law firm Myers, Brier & Kelly under which the firm receives a monthly stipend for ongoing representation, and that any separate litigation invoices beyond the contract would require board approval. Commissioner Chermack said he sent a letter to outside counsel directing that counsel not bill the county for any costs associated with that litigation without board approval.

Members of the public raised concerns about political motives, county spending and the appropriateness of using taxpayer funds for litigation over an appointment. Some speakers urged the board not to use county funds for what they described as politically charged litigation.

County officials said they would follow the professional rules for engagement letters and that any specific litigation retainer or invoice would be subject to review and approval by the board.