Legislators can’t stop Clarkson’s anti-union lawsuit, but they can take away his $600-per-hour attorneys

Gov. Michael J. Dunleavy, Commissioner Kelly Tshibaka and Attorney General Kevin Clarkson announce legal action against public sector unions on Sept. 27, 2019. (Photo by Governor's Press Office)

Legislators can’t stop Attorney General Kevin Clarkson from pursuing an anti-union lawsuit based on his novel interpretation of Janus v. AFSCME, but it can take away the money he’s used to hire a Trump-affiliated D.C. law firm at $600 per hour to argue the case.

The House Finance Subcommittee on the Department of Law today approved several budget amendments stripping the state of the ability to pursue the lawsuit with private contracts. The state can still pursue the lawsuit but would need to do so with attorneys employed by the state.

The committee had dedicated an entire meeting earlier in the session to review the administration’s decision to sign contract at a far higher hourly rate than many other contracts the state has with private law firms. Rep. Matt Claman, D-Anchorage, said the administration had failed to justify the $600,000 contract with the Consovy McCarthy law firm.

“(Today’s amendments are) focused on the dissatisfaction of at least some members of the Legislature of the Attorney General’s decision to expend—what I think a lot of us believe—unnecessary and exorbitant resources trying to set up an appeal to the U.S. Supreme Court without focusing on the issues that are right here in Alaska,” he said, noting that Clarkson has signaled his hopes of making it into a test case to expand the scope of Janus v. AFSCME. “All of these are very, very focused on that case.”

The lawsuit, which is currently in the Alaska Superior Court despite the administration’s attempts to fast-track the case out of there, seeks to expand the application of the 2018 ruling in Janus v. AFSCME that found government employees can’t be forced to unionize. Clarkson took the case several steps further, arguing the state must take a more active role in public unions by allowing employees to opt out of unions at any time and routinely ask employees if they would like to stay in the unions.

The state’s public sector unions steadfastly opposed the changes, noting that the administration’s efforts made it clear that it intended to discourage employees from participating in unions.

Alaska Superior Court Judge Gregory Miller issued an injunction against the state, finding nothing in the U.S. Supreme Court ruling supported the state’s position. Miller later rejected attempts by the state to end the lawsuit early so it could be fast-tracked to the U.S. Supreme Court, writing the arguments for doing so put together by Consovy McCarthy were “not well founded.”

Legislators said that the national nature of the lawsuit and the state’s financial situation didn’t justify the spending, pointing out that the Department of Law budget also seeks to accept $500,000 from the North Slope Borough to staff a district attorney’s office in Utqiagvik.

But when asked when budget cuts and intent language would stop Clarkson from pursuing the case altogether, Attorney General Clarkson’s Chief of Staff Ed Sniffen said the attorney general has the power to pursue whatever cases he sees fit. He said resources could be shifted around internally, potentially diverting resources away from the state’s consumer protection efforts.

He said it was unlikely that resources for criminal prosecutions or child in need of aid cases would be diverted.

Legislators acknowledged that they couldn’t outright stop Clarkson from pursuing the case, but they said they don’t want him to be chasing it with a $600 per hour attorney. To that end, the committee adopted amendments to cut $400,000 from department’s funds to hire outside counsel and to rename the appropriation for the Civil Division, where unused money has been funneled into the lawsuit, to the “Civil Division Except Contracts Relating to Interpretation of Janus v AFSCME Decision” (it doesn’t actually rename the division, just the check that goes to it).

“I think we’re left when we see a policy decision with which we profoundly disagree, we don’t get to tell him you don’t get to argue the case, all we get to do is say, ‘We’re going to do everything we can to handicap your financial ability to pursue that,'” Claman said. “I think our goal with this is to say, ‘If you can figure out a way to do it with your in-house counsel, more power to you and God bless you.’ But if you’re going to go start spending state money on lawyers—whether it’s $300 or $400 or $600 or $900 or $950, which was the rate this guy in Washington was discounted from—we’re going to say, ‘Well, we want to try to limit your ability to do that.'”

The committee did approve a paltry $20,000 that’s specifically for contracting on the lawsuit, but that move was explained as needed to make it crystal clear that the administration can’t get creative and shift other funds into the contract. The administration can’t move money between separate allocations appropriations.

While Clarkson might be able to still devise a way around the changes to continue the contract, this record could provide ammunition if the spending somehow ends up in court.

The amendments were approved unanimously.

Once the committee wraps up at its next meeting, the recommendations will be forwarded to the House Finance Committee to be considered for inclusion in the full House operating budget.

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