City wrestles with legal options
ALAMOSA — Long-time city prosecutor Gene Farish weighed in on proposed municipal court and code changes during a work session with the Alamosa city council on Wednesday evening.
The council also discussed with Farish and City Attorney Erich Schwiesow the possibility of combining their prosecutorial and city attorney positions into one full-time attorney position.
The last time Farish’s contract was renegotiated was 2014, and his salary is $16,800 per year. The city prosecutor’s workload has increased since then. Alamosa City Manager Heather Brooks said the city needs to renegotiate that contract since Farish’s workload has increased.
The last re-negotiated salary for Schwiesow in 2017 was $51,265 a year. A full-time city attorney would be paid anywhere from $72,634 to $108,971 according to the city’s salary schedule. A full-time city prosecutor would fall in the city’s pay range of $60,528-90,813.
City staff sent a question via their list-serve municipal and city attorney lists to see if other cities in the state had separate or combined attorney positions and how those were working out for them. Many cities that responded, varying in size from Ouray to Fort Morgan, had one person or firm handling both duties, and those attorneys said for the most part they had no conflicts or issues with that. A few others like Telluride, Breckenridge and Lake City had separate positions for municipal prosecutor and attorney, and some cities like Steamboat Springs and Blackhawk had different attorneys for those roles, but the city prosecutor works in the city attorney’s office.
Schwiesow said there are times when the city would need both a city attorney and city prosecutor at the same proceedings, for example for a liquor license violation hearing.
Councilman David Broyles asked why the city was having this discussion because “if it’s not broken, why change”?
Councilman Charles Griego said the council knew this time would come when the prosecutor’s position would need to be expanded. In response to Broyles’ comment, he said, “I think it is broken.” He said the prosecutor’s position needs to be increased to half time.
Brooks said regardless of whether the council decided to keep the positions separate or combine them, the council needed to talk about whether it wanted to expand the prosecutor’s role. If, for example, the city prosecutor would be required to attend all municipal court hearings, his hours would increase.
His workload would also increase if he were to have more of a role in what is filed into municipal court, Brooks added.
Alamosa Police Chief Duane Oakes agreed, saying, “I think there’s a great need for the prosecutor to be involved more.” For one thing, the municipal clerks are now performing duties that the prosecutor should be, he said.
City Clerk/Municipal Court Clerk Holly Martinez agreed that the prosecutor needed to be more involved. “We [municipal clerks] should not be involved in any prosecution at all, and there’s a thin line we are crossing right now.” She said new Judge James McDonald was not comfortable with that.
Alamosa Mayor Ty Coleman said he did not feel comfortable with crossing any lines either.
Councilor Liz Thomas Hensley said, “It sounds like we are going to need that half time.”
“I would consider it,” Farish said, regarding increased hours. He added he might need assistance from another attorney in his office if that were the case and would require more compensation for a greater workload.
He added that he could give the council a better answer in a month or two after the new municipal judge has been here a while.
Farish has worked with the City of Alamosa for about 30 years and said he still enjoys his job and does not intend to retire right away but obviously would at some point.
In addition to serving as prosecutor for the City of Alamosa, Farish serves as city attorney (and city prosecutor when necessary) for Blanca, Del Norte, South Fork and Saguache and for 35 years was city attorney/prosecutor also for Monte Vista.
Brooks said if the council went with a combined city attorney/prosecutor, Farish and Schwiesow would need to make adjustments in their practices. The city council could advertise the new combined post or take candidates internally, she added.
Schwiesow said he is probably working about half time for the city now.
Mayor Coleman asked the attorneys how much time they would need to make that transition if the city went that route.
Farish said he never had a problem handling both city attorney and prosecutorial duties for towns he represented, but he was not sure he would want to give up all of his other commitments to focus solely on being full time with Alamosa if that is the direction the council decided to go. He said he was happy with the towns he was servicing now.
If he were the one making that full-time commitment to the city, Schwiesow said it would take time, probably four to six months before he could divest himself of obligations in his private practice. He said he had been trying to cut back on his private practice for a while but had not been very successful.
Regarding the city’s “decriminalization” code changes, Farish said he did not believe “decriminalization” was the proper term. He said it is more appropriate to talk about whether an offense can result in incarceration or not, in other words jail-able or not jail-able offenses.
Councilman Jan Vigil said the proposed ordinance gives Farish “on ramps” and “off ramps” if he is not comfortable with jail as a possibility or on the other hand believes it should be a possible sentence when it would not ordinarily be considered. He can request that from the municipal judge.
Currently all municipal offenses carry the possibility of a jail sentence on first offense, but the proposed ordinance amendment would specify 16-18 offenses for which that would still apply with the rest “decriminalized,” with jail not applicable for a first offense.
Hensley said if every offense continued to carry the possibility of jail, the city would have to provide a defense attorney, which would obviously become very expensive.
Farish said he had no argument with the offenses that had been specified as carrying a possible jail sentence on first offense and the more he heard about the “on ramp” idea, the more he was agreeable with that as well.
Schwiesow said in talking with Judge McDonald he believed the judge was not completely comfortable with the “on ramp” but was comfortable with the “off ramp,” and the American Civil Liberties Union (ACLU) would probably not like the “on ramp” either. Schwiesow said another alternative for the council would be to keep the “off ramp” giving the prosecutor and judge the option to take jail off the table but not the “on ramp” giving them the same opportunity to put it back on the table. In that case, the council might want to specify more offenses than 18 as having the opportunity for a jail sentence on the first offense.
Hensley asked if the city could add some of those offenses later, and Brooks said it would just take an ordinance change.
Caption: Alamosa City Prosecutor Gene Farish, center, speaks with city council and staff during a work session Wednesday night. From left are Alamosa City Manager Heather Brooks, Farish, City Attorney Erich Schwiesow and Alamosa Police Chief Duane Oakes.