(concurring in part and dissenting in part).
I concur in part with and dissent in part from the majority’s opinion. I agree with the majority’s conclusion that the general declaratory judgment sought by the county attorney presents no justiciable controversy. I further agree that the Crow Wing County Board acted within its authority in employing Thomas Fitzpatrick to provide labor relations advice on and to negotiate union contracts with the county attorney staff.
The issue on which I depart with the majority is whether the Crow Wing County Board is entitled to summary judgment authorizing it to employ attorney Thomas Fitzpatrick to negotiate union contracts and advise the board on labor matters involving all county employees. I would reverse because (1) Minnesota law limits the Board’s authority to special cases and extraordinary eircum-*87stances when the county attorney is unable to perform and (2) except for labor matters involving the county attorney staff, whether the county attorney is able to perform is a disputed issue of fact.
It is true that Minn.Stat. § 388.09, subd. 1 (1992) authorizes the Board to employ an attorney “in a relation to any * * * matter affecting the interests of the Board.” The Board’s broad, permissive hiring authority, however, has been substantially limited by statutory construction.
In Keiver v. Koochiching County, 141 Minn. 64, 67, 169 N.W. 254, 255 (1918), taxpayers challenged a county board’s payment to a “special county attorney” involved in the investigation of irregularity of county officers and in conducting civil litigation. Construing the predecessor to Minn.Stat. § 388.09, which had the same language “in relation to any other matter affecting the interest of the county,” the supreme court said:
The statute is designed to meet special needs or extraordinary occurrences, when the county attorney is unable, because of absence, illness, personal interests, or the legal difficulties involved, to render that effective service which the interests of the county or the public demand.
Keiver, 141 Minn, at 67, 169 N.W. at 255.
This statutory construction was not limited, as the majority suggests, to instances where the type of work involved is statutorily assigned to the county attorney. Not one word of Keiver so limits the construction given. Additionally, the employment in Keiver concerned investigating county officers’ involvement in the construction of a judicial ditch. Employment of an attorney to investigate actions of other county officers has never been a statutory duty of the county attorney. The limitation the majority puts on the Keiver construction of Minn.Stat. § 388.09 is neither warranted by the language of the case or its facts.
That Minn.Stat. § 388.051, subd. 1 (1992) does not specifically direct the county attorney to negotiate union contracts for the Board or to give advice unless requested, is not determinative. The fact that the statute does not require the county attorney to do certain legal work does not authorize the Board to hire anyone to do such work. The issue is not what the county attorney is statutorily required to do, but rather what the county board is statutorily authorized to do.
Counties and county boards represent a limited form of government in the State of Minnesota. State ex rel. Anoka County Airport Protest Committee v. Minneapolis-St. Paul Metro Airports Comm’n, 248 Minn. 134, 143, 78 N.W.2d 722, 728 (1956). Counties are extensions of the state and have only such specific authority as the legislature has delegated to them. Id. The legislature has given the county board no specific statutory authority to hire attorneys except as is found in section 388.09.
The Keiver construction asks a clear question: Is the county attorney unable because of illness, absence, personal interest or the legal difficulties involved, to render effective service which the county demands? See Keiver, 141 Minn. at 67,169 N.W. at 255. In the language of the Keiver court, “there must appear * * * some substantial reason why * * * additional heavy burdens [should be] placed upon the taxpayers by the employment of other attorneys.” Id.
That the county attorney has sued the Board on his budget does not disqualify him from negotiating or giving labor advice involving employees or officers other than his own. Furthermore, that certain employees of the county have made claims against him does not conclusively show he has a personal interest in all personnel matters. Finally, the county attorney’s inexperience in a particular legal matter does not automatically disqualify him from doing that type of legal work. The county attorney in this case stated his willingness to take continuing legal education courses involving labor law. On the record before us, whether the county attorney is unable to perform legal services remains a disputed fact question. Accordingly, summary judgment should be reversed and the fact issue should be tried.