|SUMMARY OF:||Department of Law, Spending on Contracts Related to Janus|
Purpose of the Report
An audit was requested due to concerns that the Department of Law’s spending on outside counsel for matters relating to Janus violated state law.
The audit’s opinions on whether the legislature’s restrictive Civil Division appropriations were legally constructed and whether the Department of Law’s (LAW) expenditures on matters related to Janus v. AFSCME (Janus) were allowable per state law are based on an evaluation of opposing legal arguments made by the Alaska Legislative Affairs Division of Legal and Research Services (Legislative Legal) and the attorney general. The basis for the audit’s opinions is included in this report; however, it is important to recognize that a final legal determination can only be made by the appropriate court.
The audit concluded that the legislature, through constructing LAW’s FY 21 and FY 22 Civil Division appropriations with specific limitations, effectively restricted LAW’s ability to contract with outside counsel for Janus related matters. The attorney general interpreted the restrictions to be a violation of the Alaska Constitution’s confinement clause and an improper encroachment of the powers of a separate branch of government. Based on the attorney general’s opinion, LAW disregarded the legislative restrictions and spent a total of $315,034 during FY 21 and FY 22 for outside counsel services related to the Janus decision. The services included assisting the department with cases involving the Janus decision in which the State of Alaska, or an executive of the State, was named as defendant, and filing amicus briefs in support of the State’s position.
The attorney general, Legislative Legal, and an attorney hired by the legislative auditor analyzed the legality of the Civil Division’s restrictive appropriations. The audit’s review of these legal analyses concluded that a court would likely find that the appropriations did not violate the confinement clause or the doctrine of separation of powers since the appropriation language did not prevent the attorney general from fulfilling statutory duties with in-house attorneys.
The audit also concluded that limiting expenditures for specific legal cases was perceived by some as a legislative attempt to inappropriately influence the attorney general’s actions, which increased the risk of litigation.
The audit further concluded that LAW’s decision to pay outside counsel for services related to Janus from an appropriation that expressly prohibited the expenditures likely violated AS 37.07.080(a) and Article IX, section 13 of the Alaska Constitution.
Findings and Recommendations
- The legislature should consider whether judicial review and/or ratification is necessary.