by Max Brantley
Republicans are attempting to cover Secretary of State Mark Martin's blatant disregard of the law on use of the attorney general's office for legal representation by pointing to similar disregard by others, namely the Highway and Transportation Department.
Two wrongs don't make a right. BUT ALSO: There may not be two wrongs. See update.
The law is clear. Martin must use the attorney general or get clearance from the attorney general to do otherwise. Martin did neither in a recent FOI case, hiring a Republican lawyer at $200 an hour to fight release of public documents.
The same law applies to the Highway Department. The Arkansas Highway and Transportation Department, despite a big legal staff, has over the years also hired outside counsel in a variety of types of litigation. It, too, would appear to be required to get clearance from the attorney general's office to do so. Now comes suggestions that it hasn't always, or maybe ever, bothered to seek that clearance and that the attorney general has suggested there's a lack of clarity about the various laws on the subject.
I learned of this recently myself from the case of Darren Smith, a former member of the agency's highway police, who's filed a racial discrimination suit over his failure to win promotions for which he argued he was better qualified than others. Carolyn Witherspoon has been hired as outside counsel to defend the lawsuit. Questions have been raised about whether the Highway Department followed proper procedure in engaging outside counsel to defend this case. Thus, this case has the potential to bring to a head a question about this agency just as Matt Campbell's complaint brought to a head Mark Martin's flouting of the law.
Fact is that sometimes-conflicting state law on which agencies must get approval for outside counsel and which need not is badly in need of clarification. Where the attorney general once was the state's law firm, the bureaucracy and needs have grown to the point that outside counsel is inevitable and routine. Many agencies routinely go through the steps of letting the A.G. know that outside counsel is being retained and the A.G. routinely waves it along. Some, like Martin, aren't so concerned about little ol' technicalities, otherwise known as law.
She said the department has been following the law as she understands it, something of a three-legged stool. For one thing, a 1935 state Supreme Court decision gave the Highway Department the ability to hire outside counsel "if reasonably necessary to do so." This decision followed by two years the statute cited against Mark Martin and, more recently, against the Highway Department. For another, the Mack-Blackwell Amendment in 1954 gave the agency constitutional autonomy. (This is the same sort of autonomy that raised all sorts of legal complications about actions of the Arkansas Game and Fish Commission.) For another thing, in 2011 (in the course of seeking attorney general approval for outside counsel for representation in employment cases such as the one I mentioned), the attorney general's office told the highway department that the law was murky on account of a number of conflicting statues but the former chief legal counsel, Robert Wilson, had never sought attorney general approval.
Based on all that, said Looney, "I think authority exists for the Highway Department to hire counsel when it needs to do so."
She added, "We're going to follow the law and we have attempted to follow the law." She said the department has often sought help in employment cases because property law and construction disputes are the main work and expertise of her nine-lawyer staff.
None of this is to say that the confusion explained by the a.g. in the meeting with highway department officials in 2011 (and memorialized in this memo) is not worth legal clarification.