In my last post I covered the relationship between the Attorney General and the State Board of Education as defined by the Utah Constitution. As promised, this post will cover how the relationship is defined in statute. The same disclaimers as last time apply.

The constitutional relationship was much easier to define. For starters, there were several court cases that when paired with sparse but simple constitutional language led to a fairly straightforward conclusion. The statutory case is rather more complicated—there are conflicting statutes, and a couple of the cases aren’t as directly applicable.

The AG as sole counsel

The argument used to assert an exclusive role for the AG in representing the Board is straightforward:

67-5-5. Hiring of legal counsel for agencies — Costs.
Except where specifically authorized by the Utah Constitution, or statutes, no agency shall hire legal counsel, and the attorney general alone shall have the sole right to hire legal counsel for each such agency. … Utah Code, § 67-5-5

Thus, per statute, the Board would need specific statutory or constitutional authorization to hire their own attorney. In his summary, the AG’s Office neglected to reference section 53A-1-302:

53A-1-302. Compensation of state superintendent — Other board employees.
…
(2) The board may appoint other employees as necessary for the proper administration and supervision of the public school system. The compensation and duties of these other employees shall be established by the board and paid from money appropriated for that purpose.Utah Code, § 53A-1-302 (2), emphasis added

That seems pretty clear, right? Statue grants the Board the authority to hire any one it chooses, in order to fulfill its obligations. Any organization of significant size or scope is well served by having an attorney on full-time staff, particularly when the organization writes administrative rules and enters into contracts. Given the constitutional grant of authority to the Board (i.e. “general control and supervision” of the “public education system” per Art X Sec 3), statue appears to grant the Board the right to pursue independent counsel.

How specific is specific?

This interpretation might be flawed: § 67-5-5 (above) requires an organization be “specifically authorized” to hire legal counsel. In each of the court cases quoted in the previous article (esp. Hansen (Utah 1982), and Beehive Telephone (Utah 2004)), each independent government entity was determined to have the right to employ its own counsel. However, the statutory authorization in each case was extraordinarily explicit, rather than being a general grant to hire any necessary employees.

Public Service Commission of Utah

“The [Commission] is established as an independent agency . . . [and] is charged with discharging the duties and exercising the legislative, adjudicative, and rule-making powers committed to it by law and may sue and be sued in its own name.” …

The Commission may “hire . . . advisory staff to assist the commission in performing the powers, duties, and functions committed to it by statute,” including hiring “lawyers, law clerks, and other professional and technical experts.”

Utah Code Ann. § 54-1-1 and 54-1-6(1)(a)(i), 2000, as quoted by Beehive Telephone ¶ 22-23, substitutions in original.

Utah State Retirement Board and Trust Fund

[T]he Retirement Office is specifically established as an ‘independent state agency and not a division within any other department.’ § 49-9-2. Section 49-9-4 authorizes the executive director of the Retirement Board to employ attorneys to assist in the administration of the retirement systems.” Hansen, Utah 1984

Utah State Industrial Commission

The Commission is an administrative agency, … with administrative, quasi-judicial, and quasi-legislative powers. It can sue and be sued in its own name. … It is not a body within the executive branch of government, but rather an independent agency.

Section 35-1-32 authorizes the Commission to appoint independent legal counsel to prosecute or defend any legal action within or concerning its jurisdiction. Section 35-1-32 states:

“The commission may with the approval of the governor appoint a representative to act as special prosecutor or to defend in any suit, action, proceeding, investigation, hearing or trial relating to matters within or concerning its jurisdiction.”

Hansen, Utah 1984 (See also Utah Code § 35-4-11, 1982)

State Insurance Fund

Closely associated with the State’s workmen’s compensation scheme is the State Insurance Fund. … The Director of the Department of Administrative Services now administers the Fund, and the State Treasurer, also an executive department official, is the custodian of all monies in the State Insurance Fund, § 35-3-13. The Director is authorized by statute to hire attorneys and other professional experts to assist in the administration of the Fund. § 35-3-1. … The Department of Administrative Service is an office within the executive branch of government.Hansen, Utah 1984
(Note, the court rules later in the decision that even though the Fund is under the supervision of the executive branch, it is an independent agency.)

In each of these cases, the statute authorizing independent legal counsel was explicit, not general. The statute (§ 67-5-5) requires an entity to be “specifically authorized”. Does the language of § 53A-1-302 constitute specific authorization? To me, this was the sticking point. One could semantically argue both for and against such an assertion.

The answer came indirectly through Beehive, which referenced Utah Technology Finance Corp v. Wilkinson (Utah 1986) [1] This is another case of the AG (David Wilkinson) arguing (among other things) that he is the exclusive counsel for a state entity.

[T]he legislature in section 63-60-4(1) and (2) created UTFC as an independent public nonprofit corporation. … It has all power and authority permitted nonprofit corporations by law, including but not limited to those powers stated in the Act. … The corporation is authorized in the Act to hire a full-time director and all other employees which the trustees deem necessary and to establish an advisory board to assist the board of trustees.Utah Technology Finance Corporation v. Wilkinson (Utah 1986), emphasis added

The statute that appears to be referenced is as it was passed in 1983, which contained only a reference to “all other employees which the trustees deem necessary.” The court determined this was sufficient authorization for independent legal counsel.

That would settle the matter, were it not for a small thorn: that statue was changed in 1986 with an effective date a couple of months before the Supreme Court decision. The change included a more specific grant of authorization, granting UTFC the right to “hire and retain independent legal counsel.” (Utah Code, § 63-60-4 (4)(c), 1986) [2] Did the case reference the older statute? From the context and language it seems likely. Decisions are usually rendered based on the statute that was in effect at the time of the complaint or contract. I’ve seen a handful of cases where the justices specifically acknowledge a statue that changed during the course of the case. They don’t do so here. It would require digging into the legislative debate and the case calendar/filings to get a more accurate timeline.

Plain language

Looking at it a different way, suggesting the authorization in 53A-1-302 (”may appoint other employees as necessary”) does not include the authority to hire independent counsel requires some linguistic acrobatics, suggesting the words have implicit exclusionary language specific to attorneys, or that the work of attorneys would somehow not be a necessary resource for the Board.

Statutory conclusion

Having gone through the cases/statutes cited above, I’m led to conclude that there is statutory authorization for the Board to hire its own independent counsel. I can see two points of contention with this conclusion: a) the statutory authorization is not specific enough to meet the requirements of § 67-5-5, or b) attorneys are not necessary. I disagree with those contentions.

If you see flaws in my line of reasoning, please comment.

Posted in Education, Utah Politics