Governor Otter, Idaho lawmakers complain about Wasden, Attorney General’s Office

The rift between lawmakers and the Idaho Attorney General’s Office continues to widen.

On Monday, Gov. Butch Otter jumped into the fray, calling for executive branch departments to be able to hire outside counsel — a move referred to as the deconsolidation of the AG’s office.

In the background are at least three major issues. One is a pair of stalled shipments of nuclear waste meant for research at Idaho National Laboratory. The second is the collapse of the Idaho Education Network and subsequent legal fallout — the Legislature put $8 million aside for a possible settlement this year. The final issue is the advice the office gives lawmakers.

That 20-year-old policy of a consolidated office makes Attorney General Lawrence Wasden the chief legal officer of the state of Idaho and puts responsibility for representing most state agencies and commissions in his hands. About half of the 120 deputy attorneys general are devoted to that task.

But some, including top legislative leaders and Otter, say they want state agencies to be able to pick their own lawyers.

In an interview with the Post Register, Wasden called consolidation a good policy that saves taxpayers money.

“You have to look at the benefits,” Wasden said.

THE STATE’S LAW FIRM

Wasden said consolidation has saved taxpayers in two big ways. First, it keeps state agencies from facing off against one another in court, with taxpayers footing each side’s legal bills. Second, Wasden said his office is cheaper than using outside counsel.

The office’s structure has been called into question by Senate Majority Leader Bart Davis, R-Idaho Falls. When bringing the attorney general’s budget up for a vote this session, Davis said that he hoped to bring forth a “significantly different” budget next year.

On Monday, Otter joined Davis, saying he would “relish a change” in the office.

“I would like to see my agencies have an attorney that they’re totally satisfied with,” he said. Some department heads like their deputy attorneys general, Otter noted, but others want a new lawyer.

At a Monday news conference, Otter said much of the blame for the illegal Idaho Education Network contract had been placed at the feet of Mike Gwartney, the former director of the Department of Administration and a personal friend to the governor. But Otter claims Gwartney had gotten bad advice from a deputy attorney general.

“Now that the gag order is off, we can finally talk about some of the situation of the Idaho Education Network,” Otter said. “Time after time … the administrator was advised that that was legal, that he could bifurcate that contract.”

To support that claim, Otter spokesman Jon Hanian produced a confidential memorandum by Deputy Attorney General Melissa Vandenberg, which was written months after the IEN contract was awarded. One passage hints that Vandenberg had reviewed proposed amendments to the IEN contract and had recommended technical changes, but her changes did not address the question of how contract work would be divided.

The document did not provide clear evidence supporting Otter’s claim that deputy attorneys general repeatedly advised that the contract was legal.

It was the amendment that divided the work and cut Syringa out of the IEN contract that later resulted in a judge voiding the $60 million contract.

‘UNFORTUNATE POSITION’

Todd Dvorak, spokesman for the Attorney General’s Office, said Otter hadn’t discussed the matter with Wasden.

“We’re in the unfortunate position of getting this information second-hand and through the press,” Dvorak said. “That being said, what’s clear right now is the conclusion and direction of the Idaho Supreme Court, which reviewed evidence, depositions, testimony and countless records in reaching its recent decision in this litigation.”

In its decision, the court called Gwartney the “architect” of the effort to cut Syringa out of the contract, which it characterized as a “scheme to evade the law.”

While the spat between Otter and Wasden over the IEN contract has only recently been made public, Idaho politicians have been aligning against Wasden for more than a year over his blockage of spent nuclear fuel being shipped into Idaho.

Davis criticized Wasden’s decision not to issue a waiver that would allow INL to bring in a small quantity of spent fuel rods for research purposes. Davis said that the shipment concerns national security and that the attorney general should review the serious implications of blocking it.

Wasden said he has been open to a deal that would bring spent fuel in, but it has to maintain a timetable for cleanup at the U.S. Department of Energy’s desert site, as is agreed upon in the 1995 Settlement Agreement. And Idaho has to maintain the ability to enforce compliance with that timeline, he said.

What the Department of Energy offered in the latest round of negotiations, Wasden said, was a deal with no timetable that would leave Idaho with no means of enforcing the agreement.

“They’ve got to put something real on the table to fix the problem,” he said.

‘LET THE POLITICAL CHIPS FALL’

Many others in the Legislature are upset with Wasden as well, both over the two issues outlined above and over Wasden’s legal advice on proposed legislation.

Wasden said his office doesn’t give legal advice based on what policy he would like to see enacted but rather on the basis of the state constitution and existing case law.

“You have to let the political chips fall where they may,” Wasden said.

Wasden said taxpayers would be better off if lawmakers heeded his advice more often. Instead they have cost taxpayers $2 million so far this year, Wasden said.

Davis said Wasden has helped the Legislature avoid legal trouble in proposed legislation many times. But he said it’s wrong to imagine Wasden’s advice has always kept the state out of court, or always on the winning side.

Davis said he hopes Wasden will work with lawmakers to determine “the best way to provide legal services to the state of Idaho.”

This story was originally published March 29, 2016 at 7:32 PM with the headline "Governor Otter, Idaho lawmakers complain about Wasden, Attorney General’s Office."