The AG, the State School Board, and Me (and my 103 colleagues)
We had a good conversation in the Education Committee regarding the relationship of the State Office of Education and the Attorney General. The State Office did not send a representative. An editorial and some bloggers are encouraging the Legislature to butt out. Sorry. Can’t do that. The relationship is a function of statute. If considerable dispute exists regarding that relationship, it is the Legislature that should resolve the issue.
And this matter does present a very significant issue on a going-forward basis. Legal decisions can cost the State millions of dollars and, more importantly, can impact the citizens of the State. (For example, the bad legal advice of an in-house lawyer at the Auditor’s office played a significant role in costing the State $50,000,000 in a dispute over the status of the Workers Compensation Fund; in response to that, the relationship of in-house agency counsel and the Attorney General’s office was clarified -- or so we thought -- by statute). It is an important matter (as I believe most State School Board members would agree) for agencies to clearly know from which source they should receive legal counsel and the effect that legal counsel has on them.
Of course, we are in a highly charged political atmosphere (on vouchers) that bleeds over into this issue. But, it seems naïve (or partisan) to argue that controversy should preclude consideration of process issues. Process issues arise in choppy waters. They almost always will be brought to light by some controversy that strains at the margins of Constitutional or statutory authorities. In calm seas, we simply sail along.
I suggested to the committee that it do nothing until we get past the November voucher vote. Right now, each side believes the other is acting purely for political reasons, leveraging everything for political advantage. We have a short window until that hot-button issue is resolved. Then, I assume the involved parties can resolve the relationship issue just like we do the many other issues we routinely address.
And this matter does present a very significant issue on a going-forward basis. Legal decisions can cost the State millions of dollars and, more importantly, can impact the citizens of the State. (For example, the bad legal advice of an in-house lawyer at the Auditor’s office played a significant role in costing the State $50,000,000 in a dispute over the status of the Workers Compensation Fund; in response to that, the relationship of in-house agency counsel and the Attorney General’s office was clarified -- or so we thought -- by statute). It is an important matter (as I believe most State School Board members would agree) for agencies to clearly know from which source they should receive legal counsel and the effect that legal counsel has on them.
Of course, we are in a highly charged political atmosphere (on vouchers) that bleeds over into this issue. But, it seems naïve (or partisan) to argue that controversy should preclude consideration of process issues. Process issues arise in choppy waters. They almost always will be brought to light by some controversy that strains at the margins of Constitutional or statutory authorities. In calm seas, we simply sail along.
I suggested to the committee that it do nothing until we get past the November voucher vote. Right now, each side believes the other is acting purely for political reasons, leveraging everything for political advantage. We have a short window until that hot-button issue is resolved. Then, I assume the involved parties can resolve the relationship issue just like we do the many other issues we routinely address.
posted by steve u. at 6/21/2007
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12 Comments:
You speak of bad legal advice. What about the AG? Looks like he dropped the ball on vouchers.
Is there no room for civil disobedience within our state government? Especially when, as in the voucher situation, authorities were wrong all along.
The civil disobedience question is a good one. Where does that leave our State School Board as representatives who are morally obligated to do what they believe is right? I understand there is the process of reverting to a court decision but it could require first implementing a law that the individual representative finds does not serve the people.
Individuals are still held accountable whether they are simply "following orders" or following their own moral standards. I feel more secure with a representative who will think and act on what he or she believes to be best, within reason of course. Acting on a confusing law and wasting taxpayers' money and time isn't reasonable.
I hope once the process is clarified it looks more like democracy than fascism.
Anonymous brings up great points in both his posts. When the legally binding AG opinion is completely and obviously wrong is there any option for the public servant who wants to do the right thing?
Shurtleff rendered an opinion that was clearly based on an ideological and political stand...not on what a unanimous Utah Supreme Court declared to be a correct legal understanding. It seems pretty obvious that Burningham and the board did the right thing when they didn't abide by the AG's opinion.
I have a lot of respect for your suggestion that decisions on possible government reforms should be held til after the November election. It seems there are many partisans who are angry and bitter over the recent fight. That isn’t the mood I as a citizen want my legislature to be in when they make policy.
I hate to be a pessimist but it really seems that you guys in the legislature don't need anyone from the BOE to help you make the decisions Republicans have already made on how to handle all of this. Why would Burningham want to lend any credibility to attempts to politicize board elections and other such punitive plans?
Why would (after) November be any less political? Someone on the voucher side is going to be extremely hurt (read: sensitive, defensive, antagonistic), which leaves us in much the same position we're in now.
The only difference waiting until November makes is that at the moment most everyone is hoping it'll be "the other guy" feeling the referendum pain.
For starters, after November the USOE might show up to a committee hearing.
Of course they should come. Though the disagreements grab the headlines, our hearings help reach resolutions on the many more issues that don't grab headlines
Jeremy,
We all now have 20/20 hindsight as far as the SC decision. Let's not for get that many times in SC cases, a trial judge and a panel of appeal judges will have heard arguments and researched legal precident and opinion and sometimes, I am sure, all of them come to one unanimous conclusion, only to have the SC come to the opposite conclusion, unanimously.
While I disagreed with the AG's opinion, it was well reasoned and well founded. The fact that the SC disagreed unanimously does not change that fact. It only means that the SC justices did not agree with the reasoning and foundation.
So if the SC had agreed with the AG, what would the BOE defenders be saying now?
I think the problem the AG has with the BOE is that they asked for an opinion, got that opinion then relied on lawyers who are technically under his control and technically speak for him, who were saying the opposite of what he was saying.
I think I mentioned it here before that the SAAG (Special Assistant Attorneys General) at the BOE went beyond their authority providing the Board with legal advice which contridicted the AG. I am sure that there are often spirited debates within the AG's office as to the opinion that is 'correct' and should be presented by the AG. But once a specific opinion is provided by the AG, there should be no conflicting opinions emminating from within that office. If someone believes so strongly that what the AG opined was wrong, the correct thing to do would be to resign prior to giving their own opinion. And that is where the Board would then be put in a difficult position. Their attorney is the AG. He is the only one allowed by statute to provide legal advice to the State Government.
Civil disobediance within state government had a place. Usually that is, at best, to seek a new job and, at worst, stiff fines and jail. I admire conscience, provided one has the integrity and courage to accept the consequences. We are always free to choose our actions but we are seldom free to choose the consequences. Voin Campbell.
I know it's been a couple of days, but I just re-read my comment, and realized it didn't say quite what I meant for it to say. So there's no ambiguity, the sentence should read: "One of the sides in the voucher debate is going to be extremely hurt ..."
I didn't mean to imply favoring a particular voucher position in the original wording.
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