The Board of Ed, the AG, and Constitutional Authority
Posted by Tom on July 2nd, 2007One of the issues the keeps rearing its head is the relationship between the Attorney General’s office and the Utah State Board of Education. The Education Interim Committee [1] met on the issue.
Standard disclaimers: I speak only for myself. I am not a lawyer.
Because it was surely intended to be an impartial meeting between the AG’s office and the Board [2] before a neutral but interested third party, we must overlook the fact that the agenda declared the issue as decided:
Representatives of the Attorney General’s Office will discuss the duty and authority of the attorney general to be the legal advisor to state officers and agencies, including the State Board of Education.Education Interim Committee, revised agenda, 20 June 2007
Representatives Frank and Urquhart each blogged about the discussion. (See also here, and here.)
What follows is my evaluation of the AG’s position on constitutional merits. As this post is too long for even a determined reader, I will address the statutory claim in a later post.
The Attorney General’s position
The AG’s claim is quite simple: he contends his office is the exclusive source of legal advice at representation for all state officers, to the exclusion of any other legal counsel. (The position summary [pdf] is posted at the committee website. Attached to the summary is the text of the Hansen (Utah 1982) case, which I’ll quote from in a moment.)
On constitutional authority
The case Hansen v. Utah State Retirement Board, et al was filed when then Attorney General, Robert Hansen, sought declaratory judgement that he was the exclusive source of legal counsel for the defendants, certain state executive agencies (in fact, in his brief he contended his authority encompassed all state employees).
In the decision, the justices cite a 1967 case (Hansen v. Legal Services Committee of the Utah State Legislature) which determined that, per a broad reading of the AG’s authority, the AG “had exclusive constitutional power … to act as legal advisor to the legislature.” (Hansen (1982), p. 3) This interpretation was overturned via a constitutional amendment in 1972 which expressly authorized the Legislature to employe its own legal counsel. Even had this amendment not been in place, the court rejected such a broad interpretation of the phrase “state offices”, finding, sensibly, that such a broad interpretation also meant that the AG would be the legal advisor to both the state’s elected representatives to the U.S. Senate, and the Justices themselves—a somewhat laughable idea.
The justices concluded:
[W]e conclude that the framers intended to confer constitutional power on the Attorney General only with respect to executive department offices. Thus, the constitutional authority of the Attorney General is to act as legal adviser to the constitutional executive officers referred to in Article VII, i.e., the Governor, Lt. Governor, Auditor, Treasurer, and the Superintendent of Public Instruction, the departments over which they have direct supervisory control, and to the other state executive offices referred to in Article VII.
The court recognized the Retirement Board, although it included the State Treasurer as an ex officio member, was not an executive agency under the meaning of the constitutional grant of authority to the AG, finding it was “specifically established as an ‘independent state agency and not a division within any other department.’” (ibid, quoting Utah Code 49-9-2) Later on the decision acknowledged, “None of the defendant agencies as such is an executive department agency. For various reasons the Legislature has established the [defendants, including the State Retirement Board,] as independent agencies. Likewise, the University of Utah, which enjoys a degree of constitutionally rooted independence, is not an executive department agency.” (Ibid, emphasis added)
Thus, when the AG represented the case to the interim committee suggesting the decision “holds that even independent executive branch state entities, such as the State Retirement Board … are to be represented by the Attorney General unless there is specific statutory or constitutional exemption” (AG position summary), perhaps he was a bit free with some of his descriptive language. It should probably be mentioned that Attorney General Hansen lost his case—the court found the independent agencies had authority to hire their own counsel.
Article VII
In 1986, the Utah constitution was amended, and the State Superintendent of Public Instruction was removed from the list of “state officers” in Article VII. The State Board of Education has never been listed under Article VII, which is the declaration of Utah’s executive branch officers, and their respective authority. The Board is defined in Article X.
The office of Governor is listed under Article VII. In the original constitutional language, the Attorney General was to be the legal council for the state’s chief executive. This was later amended to allow the Governor to select his own legal counsel. I don’t have a good reference for it, but I’m led to understand this occurred at a time when the Governor and AG were of different political parties.
A more recent case
In support of his opinion, the AG also cited Beehive Telephone Company v. Public Service Commission of Utah (Utah 2004), in which the court briefly recapped it Hansen decision. The AG’s excerpts turns this to his advantage, but a contextual reading provides a somewhat different interpretation:
¶19 Beehive argues that article VII, section 16 of the Utah Constitution mandates that the attorney general bring this action because, according to Beehive, the Commission is an executive agency. The Commission counters that it is an independent agency, and therefore its own independent counsel may represent the Commission in this appeal. We agree with the Commission.
¶20 We first addressed the distinction between executive and independent agencies in Hansen v. Utah State Retirement Board, 652 P.2d 1332 (Utah 1982). In that case, the attorney general filed an action against various state agencies, including the Utah State Retirement Board and Trust Fund, the Industrial Commission, the State Insurance Fund, and the University of Utah Medical Center, seeking a declaration that the Utah Constitution conferred exclusive authority on the attorney general to act as legal advisor for the agencies. Id. at 1334. We reasoned that because the attorney general is an executive department office under article VII, section 1 of the Utah Constitution, the attorney general’s constitutional authority is limited to acting as a legal advisor to only “those departments over which [executive officers] have direct supervisory control.” Id. at 1337. Thus, we explained that whether the attorney general has the power to represent state agencies depends on whether the state agencies are departments over which executive officers have “direct supervisory control,” and if not, “whether the [l]egislature has authorized defendants to employ independent counsel.” Id. at 1338.
Beehive Telephone Company v. Public Service Commission of Utah (Utah 2004), paragraphs 19-20. All substitutions in original.
In his own words
The summary presented to the Interim Committee by members of the AG’s office, cited as further proof of their claim the formal AG Opinion 02-003. It seems a little like asking the fox who should be put in charge of the hen house (what political figure wouldn’t want to see an expanded interpretation of their own authority? [3]), but even the AG’s own opinion—which is misrepresented in the presented summary to apply to all government agencies—does not give weight to his claim, as it overlooks the fact that the State Board of Education (or even the State Office of Education, as they are separate entities) are not Article VII agencies, and are not controlled or supervised by Article VII officers.
The opinion’s stated conclusion is:
Agencies subject to Article VII § 16 of the Utah Constitution violate the Constitution [the grant of authority to the AG] when they hire in-house legal counsel directly, bypassing the Attorney General, regardless of the official position or title given to the legal advisor, if the attorney provides legal advice to the Agency or its officers and staff.Attorney General Opinion 02-003
As declared above, the Board of Education is not listed under Article VII.
No constitutional grant of authority
I assert the cases cited above provide convincing argument that the Board of Education, while “state officers” are not “state officers” under the meaning of Article VII § 16, particularly in light of the Utah Supreme Court’s ruling in Hansen.
Furthermore, to interpret the phrase “state officers” to vest plenary authority in the Attorney General to act as legal adviser to all state officers and agencies would effectively nullify the power conferred by Section 16 on the Legislature to add to and shape the powers of the Attorney General. The result would be to undermine the intended flexibility accorded the Legislature to provide legal counsel to various state agencies whose functions may require special legal counsel or whose duties could result in conflicts of interest.Hansen, (Utah 1982)
I hope I have clearly provided convincing argument that no constitutional grant of authority is extended to the Attorney General’s office with regard to the State Board of Education. There may very well be a statutory relationship, but I will address that at some future time.
- It’s not a “gathering.” It seems the term offends those seeking offense. Never mind that the first two synonyms my thesaurus returns are “assembly” and “meeting”, both accurate and dignified phrases. Also on the list are “congress”, “council”, and “forum.” Mountains out of molehills. ^
- It should be noted the Board chair had made it known he would be out of the state on business that day, and that the because of the timing, there would be no regular Board meeting prior to the interim committee to prepare/approve formal response to the question. ^
- And yes, I recognize the irony of pointing that out in this context. ^
Thanks for the examination of the issue, Tom. You may not be a lawyer, but perhaps you ought to be. I, for one, appreciate your frequent and thoughtful investigation.
Left by Kim Burningham on July 2nd, 2007