Land Board opposes Republican bill banning use of the Idaho Attorney General’s Office
The Idaho Land Board on Tuesday voted to officially oppose a Republican bill that would prohibit the Department of Lands from using the Attorney General’s Office for legal services.
Note that: The bill, if passed, prohibits the use of the Attorney General’s Office.
Other legislation targeting the Idaho Attorney General’s Office this session merely allows state agencies and commissions to use, if they so choose, outside legal counsel other than that of the Attorney General’s Office.
This particular legislation outright bans the use of the Attorney General’s Office.
“I believe that the five of us as land board members have the right and authority to decide who we would like to provide legal counsel for our board and the department,” Land Board member and Idaho Controller Brandon Woolf said during the Land Board’s meeting Tuesday. “Since 1905, Idaho code ... has included this language that as the Land Board, we can determine who our legal counsel shall be. If we do not agree with the current counsel, the same law provides that we have the authority to request a second or third opinion.”
Supporters of the bill have cited a potential conflict because the attorney general is one of the voting members of the Land Board.
However, “The vast majority of the legal advice that we need is certainly not in a controversial or in conflict in any way,” board member and Secretary of State Lawerence Denney pointed out Tuesday. “I think that we do have the authority, when there is a conflict, to hire outside counsel.”
With three board members abstaining from the vote, Woolf and Denney voted to oppose the bill and direct staff to testify against it in the Senate. Gov. Brad Little, who could be called upon to sign the bill into law or veto it, abstained from voting. Attorney General Lawrence Wasden abstained, as did Superintendent of Public Instruction Sherri Ybarra.
The bill, House Bill 118, already passed the House, 57-13, along straight party lines, with all Democrats opposed, and has been referred to the Senate Resources & Environment Committee.
In the Senate, senators might look a little more closely at the negative financial impact and vote with their heads and not their hearts.
That’s because the cost of legal services would go from $405,000 per year to more than $1.8 million if passed, Department of Lands Director Dustin Miller said Tuesday.
“To put that cost in context,” Woolf said, “the potential increase to the endowments could be equal to the same amount of net income we receive annually from the grazing program.”
The Department of Lands currently uses three deputy attorneys general. According to Miller, the department has used about 7,300 hours of deputy attorney general time on average over the past eight years at an average rate of $55 per hour on average, for a total cost for legal services of about $405,000 per year.
“As the Land Board, we all know one of our key fiduciary duties is to secure the maximum long-term return,” Woolf said. “And in my opinion I believe this would go the opposite direction, if we had to find other outside counsel.”
Even more than just financial considerations, I suspect we’ll hear a constitutional argument against the bill, too.
By infringing on the Land Board’s duty to maximize long-term returns for its beneficiaries — or “invading the discretion of the board in the exercise of its fiduciary duties,” as Woolf put it — an argument could be made that the bill is unconstitutional.
That gives the Senate good reason to kill it and Gov. Little good reason to veto it.
