Island County Prosecutor Greg Banks, on behalf of the state, filed a lawsuit against a land-use attorney the Island County commissioners hired to help with the amendment to the comprehensive plan.

The “memorandum in support of entry of order ousting the defendants from the office of the Island County prosecuting attorney” was filed Wednesday in Island County Superior Court.

The lawsuit states that land-use attorney Susan Drummond “has usurped, intruded upon, and unlawfully performed the duties of the prosecuting attorney.” Essentially, it argues that she taking is over one of the elected prosecutor’s duties without his consent, which is prohibited by the state constitution.

Banks said the Washington Association of Prosecuting Attorneys board unanimously voted to support the lawsuit and authorized the staff attorney to represent him. She was appointed as a special prosecutor for the purposes of this case.

The lawsuit demands an injunction barring Drummond from performing the duties of the prosecutor.

Commissioners Jill Johnson and Helen Price Johnson said they are disappointed Banks filed the lawsuit.

Johnson said she’s concerned that the distraction caused by the litigation will delay the update of the comprehensive plan amendment. She said his decision will affect her ability to trust his counsel in the future.

“We have a prosecutor that thrives on conflict and has demonstrated that he will prioritize his needs ahead of what’s best for the citizens of Island County,” she said. “I am saddened by his actions. I would never have thought he would put himself ahead of what was best for the citizens of Island County. Truthfully, I have lost a tremendous amount of respect for him.”

Banks, however, said he is bringing the action to protect the rights of the voters and to make sure tax dollars are spent wisely.

“Besides being unlawful, it makes no sense to contract with a private law firm to do the job my office is already staffed for and required by law to perform,” he said. “My deputies were specifically hired to advise the county on land use issues, and they have extensive local expertise and knowledge.”

Banks warned the commissioners that he might file a lawsuit prior to their decision to contract with Drummond. In response, the commissioners went ahead with the contract but indemnified Drummond, meaning the county will bear her costs in defending against the lawsuit.

“The April 20, 2015, contract disenfranchises the voters by transferring core functions of the duly elected prosecuting attorney to an appointed lawyer who owes her allegiance to the Island County Board of County Commissioners, rather than to the citizens of Island County,” the lawsuit states.

It is unclear whether one of the county’s two superior court judges would hear the case. They both already have weighed in on the issue when they approved the contract, siding with the commissioners.

“It is puzzling to us that the prosecuting attorney would object to the board’s present proposal to hire special counsel and go so far as to threaten a lawsuit challenging the constitutionality of RCW 35.32.200,” they wrote. “Such special counsel will actually aid his own office in carrying out its duties.”

The state code cited allows the commissioners to hire an outside attorney if approved by the presiding superior court judge.

Banks previously said he believes the provision is unconstitutional.

The lawsuit, however, states that Banks believes the statute “is constitutional to the extent the statute provides the mechanism by which the county commissioners may enter into a contract with a special prosecutor that the superior court appoints upon the disqualification of the prosecuting attorney.”

In other words, it doesn’t authorize the commissioners to hire an outside attorney if the prosecutor is able to do the job, the lawsuit argues.

Banks wrote an affidavit explaining his position as part of the lawsuit.

He wrote that his chief civil deputy and a land-use attorney would be able to handle the comprehensive plan update.

While the county sometimes hires outside attorneys to handle litigation, Banks has never contracted with an outside attorney to provide legal advice to his clients, he wrote.

He explained that it’s important that the advice is consistent across the county and this his primary duty is to the public, not the client.

“For example, I have found that some private attorneys are more willing to acquiesce in their client’s desire for secrecy when applying the Public Records Act or the Open Meetings Act,” he wrote. “In my experience, non-governmental lawyers tend to believe they owe their allegiance to their clients as individual persons, rather than to their clients as public officials who must always act in the public interest.”

Drummond said she hadn’t received the lawsuit and couldn’t comment.