Idaho board asks court to disqualify AG Labrador from secret meeting lawsuit. Here’s why

Members of the Idaho State Board of Education seek to disqualify Attorney General Raúl Labrador from his lawsuit that alleges the board members violated government transparency law.

In a hearing Thursday, the board’s private attorney asked a district court judge to disqualify Labrador because a lawyer from his office gave the board legal advice when it held a closed-door meeting to consider a deal allowing the University of Idaho to buy a for-profit college.

State Board of Education members, who also serve as regents for U of I, said in court declarations that they relied on advice from Deputy Attorney General Jenifer Marcus that the closed-door meeting was legal.

It is “fundamentally wrong” to sue a client after a lawyer from the same office advised that the action was legal, Trudy Hanson Fouser, a Boise attorney representing the State Board of Education, argued Thursday.

Labrador also had a phone call with the board’s executive director, Matt Freeman, hours before the attorney general filed a complaint alleging the secret meeting in executive session violated Idaho’s Open Meeting Law. Freeman may have shared confidential information during the call that could be used in the attorney general’s lawsuit, Fouser argued.

“What we are asking for is a level playing field,” she said.

Deputy Attorney General Timothy Longfield argued Thursday that nothing in the attorney general’s lawsuit is based on information shared during the phone call, and the State Board already obtained equal footing by hiring a private attorney.

“That should ameliorate any issue, any harm,” Longfield said.

It’s the second time this summer that state officials have challenged Labrador’s ability to investigate or take legal action against them. The attorney general’s office is required by law to provide legal advice and representation to state agencies and officials.

Earlier this month, 4th Judicial District Judge Lynn Norton ruled that Labrador had a “notable conflict of interest” when his office began investigating officials with the Idaho Department of Health and Welfare over how it distributed federal child care grants.

An attorney from Labrador’s office advised health officials that the grants were legally distributed, and Labrador can’t investigate whether the client violated the law on the same issue, Norton ruled, before directing Labrador to appoint an independent prosecutor.

Idaho EdNews first reported that the State Board of Education is seeking to disqualify Labrador.

Differing accounts of critical phone call

Fourth Judicial District Judge Jason Scott on Thursday noted Norton’s decision but signaled that his primary concern is the phone conversation between Labrador and Freeman.

In a court declaration, Freeman said that Labrador and Solicitor General Theo Wold, who was also on the call, asked “several probing questions” about U of I’s negotiations with the University of Phoenix, the Arizona-based for-profit university that would be acquired by the Idaho institution if the deal goes through.

“I spoke openly and freely because it was not until the end of the conversation that Ms. Marcus and I were told the attorney general was going to file a complaint,” Freeman told the court. “I would not have discussed this information had I known the attorney general could use it to support filing a complaint.”

The attorney general’s case hinges on whether U of I had competition to buy the University of Phoenix. The Open Meeting Law requires that all meetings of government boards be open to the public. But the law exempts “preliminary negotiations” among public officials that involve “matters of trade or commerce” and “competition with governing bodies in other states or nations.”

Wold told the court that Labrador believed U of I was the only bidder to buy the University of Phoenix, and “at the outset of the call,” Labrador told Freeman that he intended to file a lawsuit.

“I explained that if the board would cure its violations, the attorney general would be happy to dismiss this lawsuit,” Wold said in the court declaration. “At no point in this call, or at any time, has the attorney general sought or obtained privileged or confidential information from the board.”

Labrador “understood” that “it was the standard practice of the prior attorney general’s administration” to give state employees a “courtesy call” before filing an open meeting lawsuit against their agency, Wold told the court.

Former attorney general weighs in

In a court declaration, former Idaho Attorney General Lawrence Wasden said he required attorneys in his office to contact the target of potential litigation and invite a “resolution of the issue” before a lawsuit was filed.

However, if a lawyer from the attorney general’s office had incorrectly advised the state agency that a closed-door meeting was legal, the state attorney would not take “an enforcement action,” Wasden said. Instead, the attorney general’s office would have helped the agency correct its mistake and Wasden would have required training for the attorney and state agency, he said.

“It would not have been appropriate for me to punish my client for following my advice whether that advice was correct or incorrect,” Wasden said.

Scott said he planned to rule on the board’s motion to disqualify Labrador within a week. Meanwhile, the overall case against the State Board likely will continue.

Board members maintain that Labrador’s claims are “meritless.” The board last month supplied letters from the University of Phoenix and its financial adviser showing that U of I competed with two other universities and a private entity in its bid to buy the for-profit school.