County threatened with lawsuit over coroner’s conflict of interest
Through their attorney, Ralph and Kendra Mihlfeld issued an ultimatum to the county commissioners Friday: do something about the county coroner’s illegal conflict of interest, or end up in court.
At the commissioner’s afternoon business meeting, attorney Evan Thompson from Helena presented four demands: inform the public of the Montana Association of Counties’ finding on the matter; ask Dick Brown to step down as coroner; if he refuses, have him removed from the job for cause; and develop a regulation prohibiting anyone from running a mortuary and serving as county coroner in Fergus County. The attorney said the county has until Aug. 10 to take steps toward a remedy of the situation, or the Mihlfelds will file a suit.
“I am here today on the issue raised by the Mihlfelds more than two years ago, regarding ethical violations and violations of law,” Thompson said, referring to the fact that state law prohibits a coroner from owning a funeral home unless it is the only funeral home in a county.
“Two independent analyses have been done [on the situation] and the last one found it was not just unethical, but illegal,” Thompson added.
He then pointed the commissioners to statutes he said gave them authority to deal with the situation.
“Montana law is not a bald set of tires,” he told the commissioners, indicating they had the authority to act. “But four months have passed since we last met and no action has been taken.”
The commissioners seemed taken aback by Thompson’s statements.
“I was under the impression from the Mihlfelds that as long as we had a plan of action before the next election we were ok,” Commissioner Carl Seilstad said.
“That might have been true two years ago, but after the independent analysis found this situation is illegal, it seems like something should be done soon,” Thompson shot back.
“I suggested once that we let him [Dick Brown] finish out his term as coroner, and I was told ‘if something illegal’s going on, we couldn’t let it go,’” Kendra Mihlfeld said. “So it’s not like we’re doing a 180.”
Commissioner Ross Butcher explained that one option the county has is to combine the position of coroner with that of sheriff.
“I didn’t think we were dragging our feet,” Butcher said. “I thought we’d concluded that if we got the positions combined before the next election, we were OK.”
“Following the independent legal analysis confirming this situation is illegal, the county needs to act,” Thompson replied. “I don’t think we have three years; I don’t think the county residents have three years.”
Sandy Youngbauer, presiding officer of the commission, suggested the issue of whether to combine the position or keep it an independent office be referred to the Fergus County Community Council.
“Normally this is what we’ve been doing in cases like this,” she said, “and I would hope that’s what we’d do with this.”
“There’s plenty of information out there,” Thompson said. “If you have to refer it to this other body that meets in 10 days, well, you have two months [to take action].”
Youngbauer asked Coroner Dick Brown, who was at the meeting, whether he would agree to resign voluntarily from his position as coroner.
“I have no comment,” Brown said.
After further discussion, a motion made by Butcher to refer the issue to the Community Council for input at its next meeting passed unanimously.
“When we started [discussing this] in 2014, we were wanting to get something done before the start of the new election term,” Mihlfeld said after the vote, “and now here we still are. We keep presenting and presenting, and nothing’s being done.”
Following the meeting, Brown sent this statement to the News-Argus: “As Fergus County Coroner I do my job as required by Montana Code with the assistance of the local law enforcement and the county attorney’s office. I do this with professionalism, compassion, respect and dignity to the deceased and their family members. All this is done within the budget as approved by the Fergus County Commissioners.
I will continue to fulfill my obligations as coroner and to serve the citizens of Fergus County throughout my term of office as required by the laws of the State of Montana. If anyone has questions or would like to visit with me I can be contacted in my office at 535-6965 at anytime.”
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Editor’s note: The following is the entire text of an email letter, dated Feb. 17, 2016, from MACO attorney Brian Hopkins to the Fergus County commissioners Sandy Youngbauer, Carl Seilstad and Ross Butcher, former Fergus County Attorney Tom Meissner and MACO Legal Assistant Carol Knight. The letter was given to the News-Argus by Sandy Youngbauer.
Montana Association of Counties letter on coroner’s conflict of interest
Wednesday, February 17, 2016
I have reviewed several documents related to the issue of whether an impermissible conflict of interest exists by virtue of the County Coroner owning and operating one of the two funeral homes in Fergus County. These include: A legal memorandum dated Dec. 2, 2015, from Mr. Evan Thompson, legal counsel to the owners of the Creel Funeral Home; a Letter of Advice (with a follow up) dated April 27, 2015, from Kent Sipe, Musselshell and Golden Valley County Attorney; and a legal memorandum dated Jan. 14, 2016, from Mr. William Berger, counsel for the County Coroner.
After reviewing these and related documents, I believe that an impermissible conflict of interest exists. I am not writing a separate opinion because I believe Mr. Thompson and Mr. Sipe have identified the appropriate authorities and properly applied them to the facts presented. However, I will briefly summarize my views as to why I believe their opinions are generally accurate.
First, Attorney General Opinion Volume 35, #92 (1974) cites to statutory language which states that county officers must not be interested in any contract made by them in their official capacity. That basic statutory prohibition in Section 59-501, R.C.M. 1947 referenced in that Opinion is now found at MCA Section 2-2-201, under the titles “Proscribed Acts Related to Contracts and Claims.” The AG Opinion stated that a county coroner who is a licensed funeral director is prohibited from assigning coroner cases to a mortuary in which he holds an interest. That opinion stated that a licensed mortician was excluded from this prohibition because of an exception for professional services provided by a mortician. In subsequent amendments, the “professional services” exception was removed by the statute. There is now no exception that allows a coroner who is a funeral director or a licensed mortician to assign coroner cases to a mortuary in which he holds an interest.
My understanding is that Coroner Brown is both the owner of Cloyd Funeral Home and a mortician. I agree with Mr. Thompson’s view that an exception from this provision of the law cannot be carved out by creative interpretations of the word “assign.” As I understand the facts, if the Coroner’s services are required, he will assign the remains to his funeral home and it is highly unlikely that the family of the deceased will subsequently want the remains of their loved one moved to another funeral home.
Second, AG Opinion Volume 37, #104 (1978) cites to ethical standards under prior Montana law which states that an officer of a local government may not perform an official act directly and substantially affecting to its economic benefit a business in which he has a substantial financial interest. Based on this language, the AG stated that a county coroner who is also a mortician violates Montana law if he directs that a body be taken to a funeral parlor in which he has a substantial financial interest, unless he owns the only funeral home in the area. The statutory language addressed by the AG in 1978 is now found virtually unchanged in MCA Section 2-2-121(2)(e). A subsequent AG Opinion in 1978 extended this financial interest to include businesses in which the local government officer is an employee. See AG Opinion Volume 37, #179. As noted above, this Opinion would apply to Coroner Brown as he is both the owner and mortician at Cloyd’s Funeral Home.
Mr. Thompson’s memo focuses on the first AG opinion referenced above, while Mr. Sipe focuses on the 1978 Opinion. I agree with the substance of their opinions, but do not believe that a strict rotation between funeral homes is either practical or sensitive to the needs of the family of the deceased. Even the Coroner has agreed that a strict rotation system is unworkable. I also agree with the out-of-state authorities cited by Mr. Thompson, and agree with the language from the California AG who stated that “by using the powers of his office to assign coroner cases to himself, the (coroner) has created substantial economic opportunities for himself in his private capacity as funeral director.”
I have also reviewed Mr. Berger’s memo and the concerns raised by Coroner Brown to Mr. Sipe. There do not appear to be any concerns abut the capability of Coroner Brown to perform the official duties of his office. However, I find it revealing that the concerns Coroner Brown addressed to Mr. Sipe center around the fact he has limited leeway to minimize his built-in advantage over the Mihlfelds. For example, he cannot follow a rotation process because he needs “to maintain control of the body until the investigation is complete;” he has liability insurance acting within the scope of his employment with Fergus County, but Mr. Mihlfeld has not; and he arrives first at the scene with personnel and equipment. These are only “problems” because the Coroner’s position and status gives him a natural advantage over Mr. Mihlfeld. They create a situation where his official position inevitably leads to advancement of his personal economic interests.
At this point, I will leave it to the County to resolve this issue. A few good options have been put forward, and those can be addressed by the many capable attorneys who are involved with this issue. MACo’s role is not to dictate to the County Attorneys how they should discharge their duties, particularly in a County with a Charter form of government, and I am offering my perspective because the County Commissioners asked me to do so.
MACo Legal Counsel