AGO 12-001.

• Case Date: October 22, 2012
• Court: Wyoming

Wyoming Attorney General Opinions 2012. AGO 12-001. Office of the Attorney GeneralOctober 22, 2012Formal Opinion 2012-001Kenneth DeCock County and Prosecuting Attorney 98 S. Main Street, Suite A Buffalo, WY 82834RE: Employment of Private Counsel by County OfficialsDear Mr. DeCock: You have requested a formal opinion answering seven questions concerning the respective powers of certain county officers:

1. Can the Assessor retain private counsel to provide legal services regarding county business?

2. May the Board lawfully use public funds to pay for legal services provided to the Assessor by the private attorney?

3. May the Board and/or the Assessor use personal funds to employ private counsel to provide legal services for county business?

4. May the Board and/or the Assessor obtain private legal services for county business if the services are provided al no cost?

5. May the Assessor, as a private citizen, obtain private legal services regarding county business?

6. If any of the previous questions are answered in the negative, what are the remedies for such actions?

7. Are documents and/or opinions the Assessor and/or the Board obtained from private legal counsel public records?

Background(fn1) Lake DeSmet lies within Johnson and Sheridan Counties. The Lake DeSmet Counties Coalition (LDCC) owns and operates the portion of the lake in Johnson County. The LDCC is comprised of three board members from each county, including one county commissioner from each county. The LDCC has its own legal counsel, which prepared drafts of a proposed lease at issue. Sometime before November 2011, the Wyoming Game & Fish Commission began negotiating with LDCC to lease water rights in Lake DeSmet. In November 2011, a Johnson County Commissioner told you that a proposed lease would soon be ready for discussion. We are unable to tell from your letter when the proposed lease was first ready to be discussed or was in fact discussed. In early March 2012, the Johnson County Assessor asked that you provide a legal analysis of the tax implications of the proposed lease. She provided you a summary of the proposed lease's terms. On March 19, 2012, you wrote her a short letter, citing Wyo. Stat. Ann. § 39-11-105(a), and preliminarily focusing the tax question on the proposed use of the water in the lake. On an unspecified date in March 2012, you learned that the proposed lease to Game & Fish was for a 99-year term. At another unspecified date, the Johnson County Commissioners told you that the proposed lease was written for a term of 99 years, a term of years they opposed but Game & Fish insisted upon. On April 17, 2012, which we understand to be after these discussions, the Johnson County Commissioners asked you at a board meeting to review the proposed lease, which included the 99-year term. You responded to them with a "very general analysis of the proposed lease" in your bi-monthly report to the commissioners. Although we are uncertain what conversations and writings occurred between you and the Johnson County Assessor leading up to this, on May 27, 2012, you wrote a second letter to the assessor giving her your "preliminary legal findings regarding possible taxation issues the lease created. . . ." As with the first letter, you invited her to ask you any further questions. Sometime near May 30, 2012, you spoke to the assessor, who insisted that you provide a more detailed analysis whether the proposed lease would make the lake taxable. Because the commissioners had told you that they would not agree to the 99-year lease term, and because you "lacked the resources to research a theoretical issue," you declined to provide the more detailed analysis, instead offering to request an attorney general's opinion on the taxability issue. On June 5, 2012, at a public forum on the proposed lease, the Johnson County Commissioners again said that they would oppose any lease with a 99-year term. Because you mention knowing this, we assume that you attended this meeting (although as seen below this seems contrary to information in the LDCC's email on June 25). On June 11, 2012, the assessor asked that you support her in making a request for private legal counsel. We assume that the assessor wanted you to join her in requesting that the county commission hire private counsel to help you analyze the tax implications of the proposed lease and of any possible lease terms that might later be negotiated. On June 13, 2012, you wrote an email to the assessor declaring the request for counsel "premature" because the Johnson County Commissioners would not sign the proposed lease. You wrote that if this changed, you would analyze the tax consequences of a lease...