Complicated litigation that’s pitting the Island County prosecutor and the board of commissioners against each other has become even more complicated.

The commissioners last week filed a motion to intervene in the lawsuit. If granted, it would allow the commissioners to formally join the litigation and argue their case.

In addition, the commissioners are asking that a motion for summary judgment be pushed back at least one month.

Commissioner Helen Price Johnson said the commissioners felt compelled to intervene in the lawsuit in order to protect their capacity to govern effectively.

“This lawsuit is clearly a challenge to our ability to enter into contracts,” she said.

Island County Prosecutor Greg Banks filed the lawsuit Aug. 12 in Island County Superior Court against attorney Susan Drummond, whom the commissioners contracted with to provide legal advice on the ongoing comprehensive plan amendment. The lawsuit alleges that she was taking over one of the elected prosecutor’s duties without his consent, which is prohibited by the state constitution.

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

In a declaration filed with the court, Price Johnson argued that Banks didn’t name the commissioners in his lawsuit because he “didn’t want to face the commissioners directly.”

But Banks said the only parties in such quo warranto lawsuits, under the law, are the state and “the person who has intruded upon the prosecutor’s office, to the detriment of the voters.”

He also said he tried to avoid the difficulties that would arise if the board was an opposing party in the lawsuit and he hopes “to work with them as collegially and productively as possible.”

Price Johnson emphasized that the controversy could be over if Banks simply dropped the “unnecessarily distracting” action.

“For the good of the county, the Board of Commissioners continues to desire a collaborative relationship between the prosecutor’s office and outside counsel in the updating of the Island County Comprehensive Plan,” she said. “We hope that Greg Banks will change his mind and allow this to happen.”

The litigation could become expensive. The commissioners indemnified Drummond in the contract with her after Banks threatened legal action; that means the county is paying Drummond’s legal bills. In fact, the commissioners hired an attorney to represent Drummond at a cost of up to $35,000.

And earlier this month, the commissioners hired Seattle law firm Short, Cressman & Burgess to provide them with legal advice on the lawsuit.

Price Johnson said the board met with the Seattle attorney in executive session to discuss the lawsuit.

Under state law, the board can meet behind closed doors to discuss pending litigation. In this case, the commissioners aren’t a party in the lawsuit, but Price Johnson argued that the executive session was allowed because the lawsuit directly relates to their contract with Drummond.

Banks’ attorney filed a motion for summary judgment last week, asking the judge to oust Drummond from his office. The motion states that the facts of the case are not in dispute and that the only issue is for the court to determine whether Drummond “has a de jure right to exercise the office of the Island County Prosecuting Attorney.”

The motion focuses on the importance of county prosecutors as independent and elected positions.

“As an elected officer, the prosecuting attorney may exercise his or her independent judgment without fear or repercussion from other branches of government or other government actors,” the motion states.

The commissioners’ motion to intervene requests that Banks’ summary judgment hearing, which is scheduled for Oct. 15, be delayed by at least a month to give their attorney time to respond.

Banks said the lawsuit is narrowly focused and is an important issue in the state that needs to be resolved.

“We wanted a quick and simple ‘yes’ or ‘no’ answer to a single legal question,” he said. “We were hoping that the other side would want the same thing, rather than engaging in expensive delay tactics.”