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MN county attorney’s threat to sue pays off with raise

By   /   January 25, 2013  /   No Comments

Kelly: “Did it get heated, and were there some things said? Yeah.”

BUFFALO, MN — One Minnesota county attorney recently got a pay raise by doing what lawyers do best: he threatened to sue.

While threatening to take a defendant to court can be a prosecutor’s most powerful tool, Wright County Attorney Tom Kelly recently used his legal leverage to fight what he views as an injustice in his own office: a personal pay freeze for the third year in a row.

When salary negotiations with county commissioners stalled, Kelly took the controversial step of forcing the board to decide between spending an estimated $15,000 to 20,000 at taxpayer expense to litigate the matter or giving in to a $2,000 or $3,000 raise on his salary.

“I was against the pay increase because the rank-and-file didn’t get one, but beyond that I was even more disappointed in his approach and his threat to litigate at the very start of the process,” said Wright County Commissioner Pat Sawatzke.

“I talked about litigation. I said I don’t want to litigate. I’d like to be able to resolve this and shake hands and move on,” said Kelly.

The controversy has nothing to do with the job performance of the veteran prosecutor, who’s worked his way up the ladder since starting out 29 years ago at a salary of $19,000. Kelly gets high marks even from county officials who recently opposed giving their highest-paid employee an increase above his $124,255 salary in tough economic times.

“I feel like I’m in the same boat as everybody else. If the county board decides that the economic situation does not warrant an increase, then I don’t get an increase,” said Wright County Coordinator Richard Norman, who did not receive an increase above his annual salary of $112,740.

Kelly argues he’s still underpaid by up to $30,000 in comparison to his peers in neighboring counties. Technically, county officials maintain no one else in the county’s 600 member workforce got a pay raise.  Numerous employees received more compensation, however, due to automatic pay-scale increases built into their positions and adjustments recommended by an outside consultant last year.

By state law, county boards have the authority to set salaries for elected officials, who can challenge their proposed compensation in district court. When the Wright County Commissioners were personally exposed in a November bargaining session to the hard-nosed negotiating style that has led to Kelly’s many criminal convictions, it led to a verdict of hard feelings among many.

“He wrote it right out in the information he gave us.  He (Kelly) wrote that it would be less expensive to give me this raise than litigate this matter,” Sawatzke said. “I was not appreciative of the tactic.”

“Sure, I admit I was ready to do it. I gave them four-and-a-half pages of case law and statute and justification because I wanted them to know the protocol that should take place during a negotiation with an elected official as a bargaining unit of one,” Kelly said.

It’s hard to blame county officials for taking Kelly seriously. After all, the prosecutor sued the county in 2007, along with the then-sheriff to reaffirm their bargaining rights as individual elected officials.

“We settled with something less than they originally demanded but more than we (originally approved) to avoid legal court costs. A county board is never sure of what a judge is going to do. Our legal advisor basically told us it’s not uncommon for county boards to lose these suits,” Sawtzke said.

Ultimately, the county board and Kelly agreed on a two percent raise of $2,485.  Kelly says drug forfeiture and other funds he brings in every year from prosecutions help offset his costs.

“I’ve bent over backwards for fiscal responsibility and (for his legal threat) to be characterized as a gun held to their head threatening to sue over $2,485? It’s silly.  Could they interpret it that way? Absolutely! Did it get heated, and were there some things said? Yeah. Do I have to agree with them? Do they have to agree with me? No,” Kelly said.

In the aftermath, some county officials say there’s a case to be made for changing the state laws on salary negotiations with county elected officials.

“I don’t think a department head should have the ability to appeal their salary or budget to court.  It doesn’t happen at townships, school districts or cities.  They don’t have department heads that can appeal their salaries or budgets to court,” Norman said.

Differences aside, there’s no indication the turmoil has affected the “Teamwork Approach”  touted by Kelly on the county website.  Looking ahead, Kelly has already made his opening argument for a one percent pay raise next year.

 Contact the author at tomasteward@yahoo.com.

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Tom Steward