The Delaware County commissioners have hired outside counsel to represent them in a breach of contract lawsuit filed against them and the county auditor nearly three weeks ago.

The Delaware County commissioners have hired outside counsel to represent them in a breach of contract lawsuit filed against them and the county auditor nearly three weeks ago.

The Nov. 23 vote did not come without conflict among commissioners and lawyers from county prosecutor Dave Yost's office.

The commissioners and county auditor George Kaitsa are being sued for more than $150,000 by a former landlord over a broken lease in the North Pointe Plaza shopping center in Lewis Center.

The lawsuit was filed Nov. 2 by Tuller Square Northpointe LLC in the Franklin County Court of Common Pleas, seeking rent and interest through Aug. 31, 2012, the expiration date of the seven-year lease.

Former county auditor and now county commissioner Todd Hanks signed the lease in 2005 for use as a Bureau of Motor Vehicles office he was opening. Kaitsa closed the office last June after learning the Ohio Department of Public Safety declined to renew its contract for the site.

Hanks abstained from discussion concerning the lawsuit, said William Owens, first assistant prosecutor with Yost's office. At the Nov. 23 commission meeting, Owens said he was "unable to obtain any authority (from the other commissioners) to make any kind of a financial offer to attempt to resolve this matter prior to litigation."

Also at the meeting, Owens said commissioner Ken O'Brien told assistant prosecutor Kyle Rohrer that he, O'Brien, didn't want the prosecutor's office "to enter an appearance, submit an answer or participate as counsel in the lawsuit."

By state statute, he said, the prosecutor's office is counsel for the commissioners and the auditor. O'Brien claimed that representing both in the lawsuit posed a conflict of interest. He also claimed that some members of Yost's team might be called as material witnesses in the case.

Owens denied there is a conflict of interest because "there is a united defense" in a breach of contract case and said he "disagreed" with O'Brien's claims. Owens added, however, his office is withdrawing from the case.

He also said it was possible but "unlikely" that anyone in Yost's office would be called as a witness.

"Nothing, however improbable, is impossible," he added.

The issue now, he said, is that the commissioners must file an answer to the complaint by Nov. 30, or they will be held in default.

Owens recommended the commissioners hire Delaware attorney William Thomas to represent the county. Thomas has agreed to represent them for a fee of $160 an hour, a fee Owens called "very reasonable."

That didn't sit well with commission president Tommy Thompson, who supported the expenditure only because of the looming deadline.

"By us having to go outside the county or county offices is putting an additional burden on taxpayers," he said.

The money will come out of a tight general fund budget, he said. "That is a real concern of mine when we already have legal counsel."

Hanks agreed with Thompson, but O'Brien voted against the plan, saying he wanted to see a longer list of available firms to consider. He said he wants to include law firms recommended by CORSA (County Risk & Sharing Authority, a division of the County Commission Association of Ohio).

The law firms are Isaac, Brant, Ledman and Teetor of Columbus, Downes, Fishel, Hass and Kim of Columbus, and Michael Heimlich of Delaware.

Owens said CORSA identified the firms as specializing in breach of contract cases.

O'Brien criticized Thompson for balking at using outside counsel, saying Thompson agreed to hire outside counsel to avoid a conflict of interest in September in another case between the commissioners and Berlin Township.

Thompson said the issue is not the same in this case.

Owens agreed with Thompson.

Yost's office also represents Berlin Township, by state statute, so the conflict of interest issue could be made in that case.

O'Brien also said there was no need to rush into a contract with outside counsel.

He said he met with Rohrer in Kaitsa's office last week and at that time brought up the possibility of asking for a continuation in the breach of contract case.

"You don't want us to file an answer or do anything on the lawsuit but now you're asking us to file ... for an extension of time in which to file an answer to the lawsuit by another attorney?" Owens asked O'Brien.

"That is not correct," O'Brien answered.

"What are you asking for?" Owens asked.

"I'm only asking for a motion of continuance to be filed," O'Brien responded.

"You're asking for a motion to delay the filing of the answer, not a continuance, which I do not recommend. ... Sorry you didn't bring it up last week," Owens said.

O'Brien said he did bring it up in the meeting in Kaitsa's office.

Rohrer also attended the Nov. 23 meeting. He said the issue came up, but O'Brien never requested his help in asking for more time.