A legal technicality with big IEN implications
By Seth Ogilvie, Idaho Reports
From one lawmaker’s proposal to kick him off the land board to discussion of decentralizing the office to delaying his budget, Attorney General Lawrence Wasden received a less-than-warm embrace from the 2016 Legislature.
Wasden called those actions a “tactic of the political ambush” in an interview with Idaho Reports. The bombardment has escalated, and with his position on how to handle the next step of the Idaho Education Network mess, he’ll likely face more attacks soon.
In recent press conferences, Gov. C.L. “Butch” Otter didn’t have much interest in defending Wasden from criticism, joining the call for decentralization and pinning some responsibility for the Idaho Education Network on the attorney general’s office. When asked if the attacks were appropriate, Otter chose to defend his frustrations rather than how he and the legislature expressed them.
Like a bad marriage, sometimes the fight is over the issue at hand, and sometimes the issue at hand is simply a conduit to fight over issues from the past. The legislature, the governor and the attorney general have many issues in their past. A settlement in the Idaho Education Network legal saga, although important, may simply be a conduit for many other arguments, a conduit with major repercussions.
The Idaho Legislature is hoping $8 million in an obscure Legislative Legal Defense Fund might end the state’s ongoing legal fight over the Idaho Education Network. “I think it’s in all our interest to get this behind us,” House Speaker Scott Bedke said, according to Betsy Russell of the Spokesman Review.
The problem is we’ve tried to end this story before. Throughout the saga — when the E-rate dollars stopped coming in, when students were at risk of losing their internet, and when the individual school districts were sent out on their own to find contracts — one thing stayed the same: Idaho ended up in court.
Syringa filed suit, and at the center of it all was a deal the Idaho Department of Administration had with the Education Networks of America and Quest. Many have pointed to the contract being split between these two as the problem, but in a line of dicta, the court laid out a more nuanced interpretation.
What’s dicta? It’s an opinion of the court that isn’t a binding part of the legal findings. That legal technicality is at the heart of the current debate on the settlement.
In a line of dictum from the March 2013 Syringa v Idaho ruling, the Idaho Supreme Court stated “The separate contracts as amended no longer conform to the RFP’s (request for proposal) description of property to be acquired”
The nuance in the dicta is crucial to the current attempts to disperse blame in the aftermath of the debacle. On Jan. 12, 2009, the Division of Purchasing closed the RFP for the Idaho Education Network. On Feb. 26, the department offered amendments to both ENA and Qwest, and awarded the contract on Feb. 28. The contract was closed, then amended, then awarded, meaning what the companies had bid on was not the final contract awarded.
Five months after the department awarded the contract, Deputy Attorney General Melissa Vandenberg gave her review of the RFP after being asked her opinion. “I reviewed the RFP and the amendments and found that they make multiple references to Administration’s reserved option to award the contract to multiple proposers,” Vandenberg wrote in a previously sealed document.
On Monday, Otter pointed out this line as a key to the legal debacle. “The administrator was advised that that was legal, that he could actually bifurcate that contract,” Otter told reporters. “Then a letter was later written to the attorney general himself and said I want more legal eyes on this. I want to make sure we’re doing the right thing, and of course the rest is history.”
The not-so-subtle subtext of the comment: The AG’s office is not without blame.
Otter is looking to the bifurcated contract as the reason for the legal problems, but the AG’s office points to the nuanced idea from the Supreme Court. The divided contract isn’t the problem, Wasden said. It was that the contract no longer conforms to the RFP.
“The governor is sadly misinformed,” Wasden said in an interview with Idaho Reports. “Melissa Vandenberg was not consulted by her client about whether that IEN contract should be split or how it should be split, it wasn’t until long after that contract was awarded that she was even contacted.”
“Did we give bad advice? The answer is no,” Wasden said. “Had we been asked can they split the contract? The answer is yes.”
Dicta can also give us an idea of where the court is headed. In the March 2016 ruling, the court had a familiar phrase. “By amending the contracts so that Qwest and ENA were no longer furnishing the same or similar property, the State has, in effect, changed the RFP after the bids.”
In other words, the opinions of the court as expressed in dicta can come back as rulings later on.
The March ruling had a new piece of dicta that is currently at the center of debate.
“Section 67-5725 does impose an obligation on the proper officer “of the state of Idaho” to seek repayment of money advanced under the void SBPOs, if repayment is refused or delayed,” the ruling says. “But it imposes no obligation on the district court to preemptively order that DOA comply with this obligation. If the appropriate State officer fails to perform this statutory obligation, the State’s chief legal officer can step forward to make the State whole for these unfortunate violations of State law.”
Moving ahead with settlement talks could be perceived as contrary to this obligation, but as the Governor said Monday, much of that depends on one word in that first sentence: “Advanced.”
“What do they mean by the word advanced?” Otter said. “That’s where the question is.”
The other part of the dicta is straightforward. If the Department of Administration “fails to perform” the statutory obligation, the Attorney General “can step forward”
But remember that this is only dicta, not a court order.
That leaves us with a new Department of Administration director who has stayed quiet on the issue, an attorney general with a possible obligation in conflict with the settlement, and a legislature with one goal in mind: end the IEN saga. Three different groups, three different loyalties.
Questions of loyalty are nothing new for Wasden. In the aftermath of the 2002 tribal gaming initiative, Wasden was forced to pick sides. Would he defend the statute passed by the legislature, or the initiative passed by the people?
“Think about that for a moment or two,” Wasden said in an Idaho Reports interview. “That would have been titled the State of Idaho by and through Attorney general Lawrence Wasden vs. the State of Idaho by and through Attorney general Lawrence Wasden.”
Wasden chose to defend the people’s initiative. The legislature was left without its attorney to defend it, giving some in the statehouse reason to question whether the attorney general would always have their backs. “In my private life, when I go out and hire an attorney that attorney works for me, not for anybody else,” Otter said on Monday. “He doesn’t work for that law firm. He works for me, loyal to me.”
That sense that the attorney general doesn’t always work for them has begun a push for deconsolidation. A move first accomplished during Attorney General Frank Benson time in office. The reason for the desire is made apparent in the Attorney General’s statement. When the administrative branch, the legislative branch, or the people of Idaho sue each other, the AG has to take sides.
Wasden made it very clear to Idaho Reports who he would side with. “I’m elected to represent all of the people of the state,” he said. “And that’s the entity to whom my loyalty flows.”
If the attorney general represents the people, through deconsolidation the legislature and the administration are attempting to find a lawyer who will represent them. They are two coequal branches of government, and they are constantly sued, justifiably or not. They would seem to have right to defense attorney loyal to them and only them.
But the right of a state entity is different from the Governor hiring his personal attorney. “When I then am assigned to represent a state agency, it’s not that agency head that I am representing,” Wasden said. “It’s the agency, and on behalf of the people, so your loyalty flows to the rule of law, which is what we should be doing.”
It’s not straightforward, and it’s not just about personalities and political backstory. The calls for deconsolidation will most likely be louder next legislative session, and deconsolidation may even happen, but the fight will continue into the future. At its core is three branches of government set in opposition to each other, and the people of Idaho who may have a fourth agenda. Even if the issue is settled next year, it will surely rise again.
And there will be plenty of dicta to look back on.