State won't pay all caucus scandal fees
11:17 AM 1/31/03
Phil Brinkman State government reporter

The Legislature will not pay legal fees for anyone charged in the ongoing criminal investigation into illegal campaigning, but lawmakers will continue covering such fees for witnesses not accused of wrongdoing, under an agreement announced Friday.

Anyone who received the free help and is convicted of a crime will be required to reimburse the state, according to the agreement between top legislative leaders and newly installed Democratic Attorney General Peg Lautenschlager.

Although the agreement essentially codifies what had been an informal practice, it spares a threatened legal fight over the policy, which has cost taxpayers nearly $700,000 over the past year and a half.

It also earned Lautenschlager a shot of goodwill from Republican legislators, mistrustful of past efforts to stop the payments by her predecessor, Democratic Gov. Jim Doyle, and suggested an early independence from the new governor.

In one of his first acts in office, Doyle authorized Lautenschlager to sue to stop the payments, which he said grants legislative employees a benefit not available to any other state employee.

But Lautenschlager followed a different legal tack from that used by Doyle, when he sought unsuccessfully to have former GOP Gov. Scott McCallum authorize him to file suit.

Then, Doyle argued the payments violated a state law that establishes conditions for reimbursing state employees' legal fees: The payments must relate to civil complaints, not criminal charges, and can only be paid after a finding that the employee was being questioned for acts falling within the scope of that person's job.

But the flaw in that argument, Lautenschlager said Friday, is it assumes the Legislature is prohibited from creating other payment methods. As one of three co-equal branches of government, the Legislature is entitled under the state constitution to adopt its own rules, she said.

"It is a benefit that others didn't get, and it's troubling from that standpoint," Lautenschlager said. "But I don't think I have the legal argument on my side."

On the other hand, she said, the payments must be limited under a well established legal precedent known as the "public purpose doctrine," which holds that public money should be used solely for public benefit.

"We all believe ... that the public purpose doctrine does not allow for payment of legal fees for those convicted of a crime," she said.

To avoid legal fights to recover money after someone is convicted, the Democratic and Republican leaders of both houses of the Legislature agreed to formally stop payments after a person has been charged. Those who receive payment for legal fees in the future will have to sign a statement agreeing to the provision, as well as repaying the money if convicted.

The agreement doesn't call for recouping any of the money that has been paid already, although Lautenschlager said she would seek restitution from anyone who is convicted.

Doyle disagreed with the conclusions of the attorney general but "respects that this is her right to make this call," spokesman Thad Nation said. "He's always believed that legislators should be treated the same way as everyone else."

Nation said the governor has no plans to hire an independent attorney to stop all payment of the fees.

Republican and Democratic legislators praised the agreement, as did reform advocate Jay Heck, executive director of Common Cause in Wisconsin, which had earlier sued to stop the payments.

"It had never been the intention of Common Cause to have those individuals who were innocent who were called before the John Doe (secret court hearing) to be forced to pay their legal fees," Heck said.