In a hearing Aug. 27 featuring all three county commissioners on one side of a courtroom and Mobile County District Attorney Ashley Rich on the other, the two parties were unable to hammer out an agreement in a request for additional funding Rich first sought, through extra-judicial channels, when she initially took office in 2010. Instead, Monroe County Circuit Court Judge George Elbrecht, who was appointed to the case after local judges recused themselves, encouraged both sides to agree upon an order for summary judgment and resume their arguments on appeal.

Earlier this year, Rich received a favorable opinion from both Elbrecht and Attorney General Luther Strange in a lawsuit compelling the county to pay for a larger percentage of her assistants’ salaries and expenses. Rich cited two local laws and the salary scale of state prosecutors in Montgomery and Jefferson counties in her argument that her office was underfunded by the county by as much as $2.4 million annually.

Originally, Rich also sought $4.8 million in retroactive payments, but Elbrecht determined “handshake agreements” between previous district attorneys and the county essentially “waived” that right on behalf of the office. But attorneys for Rich argued evidence would likely show that previous district attorneys Chris Galanos and John Tyson were unaware of the laws, and their arrangements should not dictate Rich’s ability to manage her payroll. But pending an agreement on a new salary schedule, the county is actually obligated to pay less than it has in previous years, according to county attorney Jay Ross.

“Under the judge’s order, the money will either stay the same or could potentially go down,” Ross said. “They’ve never followed the schedule, so we’re working toward one both side can agree on, but whether or not that will happen, we’ll see.”

Rich’s criticism was more direct, calling out the county for being soft on its support for public safety and contesting a request which would constitute less than one percent of its annual budget. She said she would accept a reasonable lump sum if the county was willing to adopt a comparable salary scale, but the 1988 guidelines currently under consideration offer just $28,000 for first-year attorneys and $67,500 for 25-year veterans. The state would chip in an additional $15,000 per assistant district attorney.

Alternately, Rich is proposing a scale with a low-end of $63,830, topping out at $163,778 for her most senior assistants. By contrast, the range adopted by Montgomery County in 2007 was between $53,523 and $134,731.

“The salary schedule we are proposing for our office is very comparable to Jefferson or Montgomery counties,” she said. “It’s not out of the ordinary compared to the two largest district attorney’s offices in the state. But [Mobile County] does not seem to think our ADAs, who are responsible for prosecuting the worst criminal cases in the county are worth $900,000 more per year. To me, that seems to indicate that public safety is not a priority for this county commission.”

Earlier, Elbrecht had ordered the parties into mediation with attorney R. Boyd Miller, but in a report to the judge, Miller chuckled about the proceedings, saying, “further efforts would be productive.”

“Both sides have worked diligently to reach a resolution,” he said. “Some progress was made but that’s all I’d be comfortable reporting to this court at this time.”

Despite earlier indications of support for Rich’s argument, Elbrecht indicated the “waiver” of pay raises by Tyson and Galanos threw a wrench in the request.

“This lady represents not only the people of the county and state but she represents the office,” he said. “I think the duly elected DA (Tyson and Galanos) can waive those increases. It would be manifestly unjust to say the next hire for the DA’s should have the benefit of 20 years of increases that were waived for 20 years.”

Elbrecht also said he appreciated the case as legal theater and suggested even he could benefit from the scrutiny of an appeal to the Supreme Court.

“I probably created some of the confusion and/or issues in this case as far as whether the constitutionality of statutes would be challenged or raising the issue of the waiver,” he said. “But my concern as a judge is to be honest about I how I feel and what I see so that each of you can act accordingly. There has been some excellent lawyering in the case on both sides.”

The county currently chips in about $1.5 million of the DA’s $4.7 million annual budget, with the remainder coming from the state, court costs, forfeitures and grants. Attorneys for Rich urged Elbrecht to help settle the dispute before the next fiscal year Oct. 1. Elbrecht asked to parties to work together on the proposed order and meet for another hearing Sept. 20.