Tensions mount between lawmakers, AG's office

Mounting tensions between Idaho lawmakers and the Attorney General's office have revealed a political power struggle over whether the state's elected officials should be able to pursue legal opinions that match their own interests.

Gov. Butch Otter announced on Monday the office of Attorney General Lawrence Wasden needs to be scaled back and no longer be in charge of providing legal counsel to state agencies. Meanwhile, the Republican supermajority in the Idaho Legislature has found ways to funnel money for third-party legal opinions and has floated several legislative proposals directing Wasden's office on what to do.

"This is not an attack on the attorney general so much as it is frustration with the system," Otter said. "I would relish a change."

The attorney general's office represents the state in legal disputes and issues legal advice to state agencies and the Legislature. If lawmakers ignore that advice — which happens regularly — the attorney general is still required to defend and enforce those laws.

The job also has meant sometimes pitting himself against members of his own Republican Party. In 2010, Wasden successfully sued the Idaho Land Board, alleging it violated the state Constitution by setting rents below market value on state-owned lakeshore lots. The board consists of Wasden, Otter and three other constitutional officers. House Majority Caucus Chair John Vander Woude floated a bill that would kick Wasden off the board. While it failed this year, the proposal was supported by other House leaders.

Rep. Luke Malek, R-Coeur d'Alene, who is an attorney, said he has mixed feelings about the situation.

"There's frustration all the way around," he said. "I definitely sense frustration from the AG's office because they are put in difficult positions a lot of the time. But I've also felt frustration as a lawmaker because they can't always give me advice."

Malek said he has concerns that the office has limitations because it serves so many different roles.

"Sometimes they're put in an ethically impossible position," he said.

Malek said lawmakers expanded authority of the AG's office this year with child protection cases.

"Because those cases were being handled at the local level, there was a lot of disparity on how those cases were being handled," he said. "It made more sense for continuity across the board."

On the other hand, Malek said, there needs to be a method to deal with situations in which the AG's office is spread too thin to give advice.

"They're required to take on too many roles," Malek said. "In instances where there are conflicts, there needs to be a system to eliminate that conflict."

Malek cited an instance during the 2015 legislative session in which the AG's office could not give him an opinion regarding proposed policy on the Idaho Education Network, so Malek spent $2,000 of his campaign funds to pay for a legal opinion.

"I had no other way to get a legal opinion to move forward, so I got it by hiring a private attorney," he said. "It gave me a very clear picture of where the state stood legally and what policy direction we needed to take."

Malek said he wants to make it clear he's not saying the AG's office is doing a bad job.

"It's just boxed in by ethical boundaries and statutory requirements," he said. "(Wasden) has tremendous people working for him. There's just real issues we're going to have to deal with and it has to be in coordination with lawmakers and the AG's office. It doesn't have to be combative."

Sen. Steve Vick, R-Dalton Gardens, said he has felt the tension between the lawmakers and the AG's office. He wonders if Idaho needs to look into what other state legislatures are doing for legal advice.

"When I previously worked in the Montana Legislature, it had its own attorneys and didn't go through the AG's office," Vick said. "I'd like to see that, if we reform the AG's office, I think the Legislature should have its own counsel. There's a number of good examples in other states we could look into."

Vick said it appears the AG's office oftentimes pursues its own agenda rather than fulfilling some requests legislators make.

"They seem to have given instructions on how things need to be done, but I've also found them to be helpful with a number of other issues so it has not always been frustrating."

Sen. Bob Nonini, R-Coeur d'Alene, said he has seen stories about the power struggle but doesn't have any concerns with how the AG's office operates.

"I've been working with the AG's office on the North Idaho water adjudication and have been impressed with the Natural Resources Division," Nonini said. "I've been satisfied with the results. That doesn't mean I agree 100 percent with the AG's office, but he's elected by the people of Idaho."

Wasden has maintained that most lawmakers, including Otter, have not talked to him about their concerns. Wasden also counters that the 20-year old system of having the state's chief legal officer represent most state agencies and commissions has saved the taxpayers millions of dollars. Before 1996, state agencies hired their own counsel, typically much more expensive than using state attorneys.

"Do voters want attorneys who will be cheerleaders for agencies, or attorneys providing legal advice based on the rule of law?" Wasden asked.

As a constitutional officer, Wasden answers to voters and not the governor or the Legislature. Lawmakers can limit Wasden's job by either drastically reducing state funding or going to private attorneys for legal counsel. However, stripping Wasden's powers requires a constitutional amendment.

Lawmakers and state officials are protected under client-attorney privileges, which can result in clients freely criticizing the attorney general's office even though neither Wasden nor his staff can freely respond.

According to the National Association of Attorneys General, the seat sits at the "intersection of law and public policy." Under Wasden's tenure, that has meant devoting resources on issues like prosecuting Internet crimes against children, championing access to public records and consumer protection.

Wasden also came under fire for refusing to sign a waiver to allow a shipment of spent fuel rods to be sent to the Idaho National Laboratory. Wasden argues the U.S. Department of Energy missed one of its cleanup deadlines.

This year, Rep. Jeff Thompson, R-Idaho Falls, introduced a non-binding resolution urging Wasden to sign the waiver. The resolution passed with minimal opposition in the House.

"I can't predict when someone is going to introduce a resolution in a House committee that (passes) without a hearing. I can't predict what someone might say at a press conference. I can't predict when someone might introduce a constitutional amendment to take me off the Land Board. I really can't predict those things, but I certainly stand ready to have those conversations," Wasden said.

The political power struggle shows no sign of stopping as lawmakers have vowed to renew their efforts in next year's legislative session.

Right before adjourning for the year, Senate Majority Leader Bart Davis announced on the Senate floor that he was relinquishing holding the attorney general's budget hostage after refusing to allow lawmakers to vote on it for more than a week.

His reasoning? It was too late to make any systematic changes to the office. However, Davis vowed to come back next year with a proposal that would see big changes in 2017.