Legislative staffers cannot bill taxpayers for legal bills, state says
10:30 AM 10/24/01
Phil Brinkman State government reporter
Legislative staffers under investigation for alleged campaign and ethics violations can't stick taxpayers with their legal bills, an assistant state attorney general said Wednesday.
In a letter to Dane County District Attorney Brian Blanchard, Matthew Frank said separate resolutions by Assembly and Senate committees to charge the state for the fees are "contrary to state law."
Blanchard and Milwaukee County District Attorney E. Michael McCann are investigating allegations that employees of the four partisan caucuses campaigned on state time or with state resources.
To date, employees have submitted about $63,000 in legal bills to the Assembly and Senate chief clerks' offices. Much of that is thought to be for legal representation before a secret court proceeding, known as a John Doe investigation.
Wisconsin law requires the state to reimburse employees for defending themselves against certain legal actions, and state officials said they were invoking that law when they approved paying the bills this month.
Frank's advisory letter said the decision to pay the employees' legal tab failed each of three tests needed before reimbursements can be paid:
-The state first must refuse to provide legal representation to the employees. To date, no one has asked the Justice Department to provide such representation as part of the caucus inquiry.
-The case must involve a civil action; criminal charges are not covered except in a highly limited number of cases. Those include state employees charged with abusing inmates who are subsequently acquitted, and certain employees charged in connection with the storage, transportation, treatment or disposal of hazardous substances.
It's not known whether Blanchard and McCann are pursuing possible civil fines or criminal penalties.
-The litigation must involve acts committed by an employee acting in the scope of his or her job. Before any money is paid, a finding must be made that the acts meet that criterion.
That last test may be the hardest. By definition, campaigning on state time is not within the scope of state employees' jobs.
Attorney General James Doyle expressed anger at legislators for agreeing to pay employees' legal fees proactively, even before a determination has been made about their guilt or innocence.
"I think it clearly is special treatment. We do not do this for any other state employee," Doyle said, noting that his office has had to tell prison guards accused by inmates in specious abuse cases that they must front their own legal costs.
Employees can still request reimbursement from the state Claims Board, which has broad discretion to pay or reject claims, Frank said. Recommendations to pay claims of $5,000 or more must be approved by the Legislature's Joint Finance Committee.
Although the activity would have benefited the privately funded campaign committees affiliated with each caucus, those committees also cannot use political donations to pay legal fees in a criminal investigation, said Kevin Kennedy, executive director of the state Elections Board.
The immediate impact of the decision was unclear. Senate Chief Clerk Don Schneider said he has asked the Legislature's in-house attorneys to review the letter and make a recommendation.
Four Senate staffers have so far billed Schneider for $21,173 in legal bills. On the Assembly side, five staffers have billed Assembly Chief Clerk John Scocos for $42,360. Because of the secrecy surrounding the John Doe hearing, their names were not released.
Schneider said the Senate has not yet paid any of the fees. Scocos could not be reached.