The Alaska Legislature’s auditor found the Republican Gov. Mike Dunleavy “very likely” violated state law and the Alaska Constitution when his administration ignored the Legislature and spent more than $300,000 on contracts with a Washington D.C. law firm to advance anti-union cases.
In an audit released on Wednesday by the Legislative Budget and Audit Committee, the auditor noted that the “Legislature should consider whether judicial review is warranted.” In layman’s terms, that’d be another lawsuit, which would be yet another for an administration that has racked up millions of dollars in legal judgments and settlements.
The fight dates back to the early days of the Dunleavy administration when former Attorney General Kevin Clarkson and former Administration Commissioner Kelly Tshibaka spearheaded a radical overhaul of how union dues are collected, effectively making it far more difficult for unions to collect dues from members. They argued that the U.S. Supreme Court’s Janus v. AFSCME decision required it.
However, as the Alaska Supreme Court would later rule, the Janus decision dealt only with collecting dues from non-union public employees. It required no changes to the relationship between the state, unionized employees and their unions. Earlier this year, the Alaska Supreme Court ruled there was “abundant evidence of anti-union animus” on behalf of the Dunleavy administration. It upheld a half-million dollar penalty against the state.
Undaunted, the Dunleavy administration appealed that case directly to the U.S. Supreme Court.
In that lawsuit, the Dunleavy administration’s Department of Law opted to contract the Trump-friendly law firm Consovoy McCarthy at $600 an hour for the case rather than use state attorneys.
The move angered legislators. While they recognized they couldn’t dictate what legal causes the Department of Law could pursue, they moved to stop spending on the outside law firm. Legislators did so by renaming the Civil Division’s line in the budgets running from July 2020 to July 2022 as the “Civil Division Except Contracts Relating to Interpretation of Janus v AFSCME” and specifically gave the governor $20,000 for such contracts.
The governor vetoed the $20,000 and simply ignored the Legislature’s budget, arguing that it was an unconstitutional attempt to limit the Department of Law’s autonomy. Legislators found that out when they saw further briefings done by Consovoy McCarthy
According to the audit, the administration spent $315,034 from the “Civil Division Except Contracts Relating to Interpretation of Janus v AFSCME” budget for Consovoy McCarthy to work on several cases relating to the interpretation of Janus. Most of that money, $263,000, went to the state’s lawsuit over the collection of union dues (which it lost, costing the state an additional $450,000) and another $20,325 writing amicus briefs in other anti-union cases.
The audit included consulting with the state Department of Law, the Legislature’s legal team, and an independent counsel. It noted that compared to the arguments put forward by the Department of Law — that the limitation passed by the Legislature was unconstitutional — it found the other two more convincing. Both the Legislature and the independent counsel both argued that there was nothing in the law barring the governor from pursuing the case with state attorneys rather than farming it out to the politically connected law firm.
“In contrast, the Legislative Affairs Division of Legal and Research Services, and outside counsel hired by the legislative auditor, concluded that the Civil Division appropriations likely did not violate the confinement clause because the appropriations remained available to finance the litigation of cases or controversies related to Janus and nothing prevented the civil division from using its appropriation to pay for staff attorneys to provide the representation necessary to litigate disputes related to the Janus decision,” explained the analysis. “The audit found this counter-argument was more convincing.”
As with most legal battles, however, the final word will rest with the courts. While the Legislature could retroactively sign off on the governor’s decision to farm out the case, the auditor notes they should review the possibility of taking this to the courts.
“Although the audit concludes that Legislative Legal arguments were more convincing, the issue has not yet been litigated, and the final determination rests with the courts,” the auditor’s report concludes. “As such, the legislature should consider whether judicial review is warranted.”
We’ve reached out to legislators involved in this case for comment and will update this story.
The report
Matt Acuña Buxton is a long-time political reporter who has written for the Fairbanks Daily News-Miner and The Midnight Sun political blog. He also authors the daily politics newsletter, The Alaska Memo, and can frequently be found live-tweeting public meetings on Twitter.