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Commissioners must find suitable space for county attorney


December 01, 2010
LANCASTER — Superior Court Judge Peter Bornstein has ordered that "as soon as reasonably possible" the county commissioners must furnish county attorney Robert "Bob" Mekeel with suitable offices.

Judge Bornstein agrees in his 11-page order issued on Nov. 24 that county attorney Robert "Bob" Mekeel and staff do not now have "suitable offices" in the Coös County Courthouse, but he also finds that the commissioners have not acted in bad faith.

Judge Bornstein decided that a directive from the bench — a mandamus order — was called for.

"Accordingly," he writes, the [commissioners] shall furnish the county attorney, following meaningful consultation with him, with suitable offices as soon as reasonably possible and, if that process requires the county attorney to vacate his present offices for a period of time, to furnish him with suitable temporary offices."

Judge Bornstein is clear that he finds the county attorney's offices inadequate to handle his heavy workload.

"The amount of space is simply insufficient to permit the county attorney and his staff to perform their duties and carry out the tasks required of them in a reasonable manner," he writes.

"The current offices unduly impair the reasonably efficient administration and operation of the county attorney's office. The inadequate space also … unreasonably interferes with his ability to keep confidential matters confidential and creates workplace safety hazards. Although the presence of numerous boxes and file cabinets containing closed files may exacerbate [make worse] the problem, their presence is not what renders the offices unsuitable. It is the space itself (or, more precisely, the lack thereof) that makes the offices unsuitable, not the county attorney's use of that space."

Frustrated by what he perceived as a lack of action on the commissioners' part, county attorney Mekeel brought suit against them on Aug. 29.

He asked the court to direct the commissioners not to continue to lease his current offices and to order them instead to lease offices in the former Lancaster National Bank Building.

Although the commissioners, represented by attorney Phil Waystack of Waystack and Frizzell of Colebrook, acknowledged their duty to provide the county attorney suitable offices, they argued that they had diligently sought to do so. They also contended, however, that "an inefficient accumulation of closed files and file cabinets" in the county attorney's offices "impacts the efficiency." The commissioners said his existing offices could be made "suitable" by either leasing an off-site storage space or by implementing a three-way "space swap" within the state-owned courthouse.

Under the commissioners' proposal, the county attorney would move to the Register of Probate's space; Probate would move to the sheriff's office plus some space in the Grand Jury room; and the sheriff's office would move to the county attorney's office, all at an estimated cost in the $70,000 range to be paid for by county taxpayers and not by the state.

The commissioners asked the Court for an order approving the three-way courthouse space swap plan, while Mr. Mekeel sought an order to lease bank-building space.

Judge Bornstein writes that to take such action "would compel a particular result in a matter in which the commissioners have discretion and in which more than one solution may be available."

Judge Bornstein writes that the Court cannot find that there is only one possible solution, because that would have him "delve in matters that are within the commissioners' discretion."

So Judge Bornstein carefully points out, "the Court is not approving or ordering the three-way 'space swap,' the lease of the bank premises, or any particular course of action, though the commissioners are free to consider any alternative that will satisfy their duty to provide suitable offices."

Asked for a comment in a Monday morning e-mail exchange, county attorney Mekeel wrote, "I am grateful for our legal system and its ability to resolve disputes among different governmental agencies.

Now that the Superior Court 'agrees with the county attorney that the offices he presently occupies in the courthouse are not suitable' we are hopeful that arrangements can amicably be made to relocate to suitable space as soon as possible."

Attorney Waystack was in Concord on Monday and was unavailable for comment.

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