Instead of cooperating with the planning department, Island County Commissioner Kelly Emerson and her husband are using a legal maneuver in an attempt to prevent the county from collecting or levying more fines against them.

In addition, Commissioner Emerson is now officially suing the county that she leads.

Stephen Pidgeon, an Everett attorney representing the couple, filed a motion to amend the Emersons’ complaint against a former commissioner and two county employees. The proposed amendments, filed in Island County Superior Court Jan. 24, include a request for a restraining order and injunction aimed at preventing the county planning department from fining or collecting fines from the Emersons.

The amended complaint also adds Island County as a defendant, along with former Commissioner John Dean, Planning Director Bob Pederson and Building Inspector Ron Slechta.

A Superior Court judge will hear the motion at a 9:30 a.m. hearing on Jan. 31. Mark Johnsen, the attorney representing the county through the risk pool, said he won’t oppose the amendment, which is common in the early months of a lawsuits. He said the judge will likely approve the amendment and no details of the case will be discussed.

Early this month, the county’s code enforcement officer sent Commissioner Emerson and her husband, Kenneth, a supplemental enforcement order assessing them $37,000 for alleged violations of the county building code, critical areas ordinances and zoning ordinance. They are still subject to a $500-a-day fine for alleged violations of the critical areas ordinance.

The penalties and fees racked up after the Emersons didn’t respond to either an Oct. 1 notice of violation or a Nov. 1 initial enforcement order regarding structures the couple allegedly built in their Camano Island backyard without necessary permits and possibly within a stream buffer, which is a critical area. The order directed them to come into compliance with county code and submit a wetland report.

Instead, the Emersons filed the lawsuit for defamation, trespass and violation of the Consumer Protection Act on Nov. 1. They asked for unspecified damages.

The lawsuit alleged that the three men violated the Emersons’ rights by using their government positions inappropriately and with political motivation. Emerson, a Republican and Tea Party member, defeated Democratic Dean in the election last fall.

In addition, the suit accuses Dean of defamation for a mailer with a phony newspaper headline that criticized Emerson for building without a permit.

The proposed amendments to the lawsuit include a request for an injunction to prevent the county from using any evidence based upon “the abuse of office by Defendant John Dean.” It also asks the court to prevent the county from “any further enforcement action, the levying of any fines, penalties, interest or the collection of any fine, penalty or interest.”

Johnsen said the next steps in the case will be discovery and the deposition of witnesses. After that, he said he’ll likely make a motion to dismiss the lawsuit.

“We don’t think the case is grounded in the law or the facts,” he said.

While Johnsen said he’s represented plenty of counties in lawsuit, he’s never had a case before in which a commissioner is suing her own county or staff.

Pidgeon didn’t return a call for comment.