A judge encouraged Mobile County commissioners and District Attorney Ashley Rich again this week to “lower the temperature” and attempt to settle a lawsuit over funding for local prosecutors that’s been dragged out more than five years.

Since at least 2011, Rich has tried unsuccessfully to get county officials to increase the salaries of her staff, and for the last five years those efforts have been part of a lawsuit that has cost taxpayers more than half a million dollars.

(Daniel Anderson/Lagniappe) Mobile County District Attorney Ashley Rich and Assistant District Attorney Tandice Hogan at the sentencing of capital murder defendant Thomas Lane.

(Daniel Anderson/Lagniappe) Mobile County District Attorney Ashley Rich and Assistant District Attorney Tandice Hogan at the sentencing of capital murder defendant Thomas Lane.

On Nov. 28, Monroe County Circuit Judge George Elbrecht held a status hearing in the case that could very well see a final ruling in December. However, Elbrecht said it would be “beneficial for everybody” if the parties could reach a settlement before then.

“This case has been very well litigated by both sides, but these are public funds that we’re dealing with,” Elbrecht said. “I’m going to encourage the parties again to resolve this case, but if they cannot, I will.”

The crux of the lawsuit has been two local laws passed in the 1980s that require the County Commission to match salary increases passed at the county level and also the state level — though previous district attorneys have ignored those laws for a number of years.

Originally, Elbrecht ruled in the county’s favor, but that decision was overturned in March after Alabama’s Supreme Court found the local statutes constitutional. In October, the court denied the county’s request for rehearing and sent the case back to Elbrecht.

“I’m not sure about other judges, but I understand the pecking order,” Elbrecht said. “I’ve been told to render an opinion that’s consistent with [the Supreme Court’s], and I’m going to try very hard to do that.”

Attorney Boyd Miller has been serving as a mediator between the parties as they’ve worked behind the scenes to reach a settlement. However, Miller said despite some progress, he “can’t report that there’s been a settlement.”

Put simply, the two main issues boil down to finding an adjusted salary schedule the county and the DA’s office can agree to, and what — if any — damages the county owes for failing to provide raises for nearly 30 years that were required by law.

Of the two, there seems to be more of a consensus around a possible salary schedule, as both parties have said there’s “potential” for an agreement on that issue. The problem, though, is figuring out what those pay ranges will look like.

The Supreme Court’s ruling authorized a pay range from $103,000 to $245,000, but Rich’s office has already said they’re willing to compromise on those figures.

Left, District Attorney Ashley Rich speaks with Mobile County Commission President Merceria Ludgood following a November hearing. (Jason Johnson)

Left, District Attorney Ashley Rich speaks with Mobile County Commission President Merceria Ludgood following a November hearing. (Jason Johnson)

The county’s attorney, LaVeeta Battle, believes those new salaries should only account for cost-of-living adjustments and not merit increases. Jeff Hartley, who represents Rich, said the law doesn’t make that distinction, though he did describe the merit component as “tiny.”

Much more complicated is what the county might have to pay out in damages, which have often been characterized in this case as “back pay” for the raises employees of the DA’s office never received.

Previously, Rich and her attorneys have asked for around $5 million, but the county maintains it doesn’t owe any money for salary adjustments that predate the original legal claim filed in 2011.

Any raises since then, though, the county says are fair game.

“There have been two county raises since then,” County Attorney Jay Ross said. “The county has held that money in escrow and we owe that for the number of actual assistant district attorneys that work in the office.”

That money has been set aside as various COLAs were approved by the county, but while other employees saw those raises immediately, Rich’s office has not. In April, Commissioner Connie Hudson told Lagniappe that was a byproduct of the ongoing lawsuit.

Paraphrasing the Supreme Court’s ruling, Battle said “the county is to provide funding for the actual salaries and not for the potential funding levels the local acts anticipate,” which the opinion from March acknowledged could be “shockingly high.”

However, Rich’s attorney Alan Alexander said the county’s interpretation would undermine the entire point of the local laws that the Supreme Court has already found to be constitutional.

In his argument, Alexander said even if the county only provides funding for raises that have occurred within the timeframe of the lawsuit, the statutes would require any baseline in those calculations to include all of the raises the county failed to provide the DAs from 1982 to 2011.

“The issue becomes, were those [local laws] constitutional and were they operative from the time they passed in 1982 and 1888?” he added. “The Supreme Court said they were … and there were a number increases that never got paid to anybody that built up to that point.”

As an example, if an employee in the DA’s office was making $50,000 in 2011 and should have been making $64,000 based on those statutes, Rich’s attorneys believe the damages due for that single employee would be $14,000.

The county, on the other hand, believes they should not be required to pay those damages because those “potential funds” were never actually paid to anyone.

Rich’s attorneys have called that argument “illogical,” saying their client couldn’t have possibly paid salaries for which the county never provided funding. Alexander said if they had, Rich’s lawsuit would not have been filed in the first place.

A final hearing before Elbrecht has been scheduled in early December, after which the court will likely issue a ruling on any outlying issues in the case. However, that doesn’t necessarily mean the legal row would be over, as the county still has the option to appeal Elbrecht’s ruling back to the Supreme Court again.