Committee advances bill limiting attorney general—revocation power over select agency counsel

The State and Local Government Committee voted 6-0 to advance as amended a bill (draft 02/2002 of 16-01) that would limit the attorney general—s ability to refuse to appoint or to revoke special assistant attorney general (SAG) status for certain state entities.

The committee met at the call of the chair and spent most of its substantive discussion on 16-01, a measure that would change how and when the AG can deny or withdraw SAG designations for attorneys who work for state officials or agencies. Committee members also discussed bills 13-77, 02/1956 and 15-35 but deferred action on those until next week.

The bill as amended would insert the Ethics Commission into a statutory list of entities and would limit the AG—s authority to refuse or revoke appointment to a narrowed group of officials and offices, retaining the governor and specifically including the State Auditor and the Ethics Commission in the subset protected from unilateral AG revocation. Senator Wallin moved the amendment to add the Ethics Commission and to limit the list; the amendment was seconded by Senator Bromberg and passed on a voice-recorded roll call, 6-0.

Committee members repeatedly stressed the legal distinction between an agency—s ability to hire an in-house attorney through an appropriations-authorized FTE and the separate, constitutional delegation that makes someone a SAG. Claire Ness, Chief Deputy Attorney General, told the committee that "giving somebody a SAG is the delegation of the attorney general's constitutional authority," and that an irrevocable mandatory delegation raised constitutional concerns for the AG—s office. Ness also explained that the existing statutory list of agencies with authority to hire attorneys reflects prior appropriations actions and that the draft bill contained some duplicative and inconsistently placed provisions relative to current code (identified in discussion as 54-12-108).

Senators discussed potential conflicts that could arise when independent or constitutionally elected offices investigate or oversee each other—for example, the Ethics Commission, the State Auditor and the AG—s office—and whether those tensions justified a prophylactic statutory change. "My journey on this one has been interesting. I am still—conflicted," said Senator Castillo, describing conversations with multiple stakeholders about the trade-offs of allowing agencies to have separate counsel that is not part of the AG's office.

The committee then considered a technical but consequential wording change in the amendment—replacing "and" with "or" on page 2, line 7—to clarify when the AG may refuse appointment absent good cause. That change was moved by Senator Brownberger and seconded by Senator Wallen and passed 6-0 on a roll call. Committee members and legal staff said the final placement of the phrase "absent good cause" would be left to legislative counsel to ensure grammatical correctness in the statute.

After final amendment votes, the committee recorded a motion for a "due pass as amended" on the bill; the motion carried 6-0. The committee assigned sponsorship of 16-01 to Senator Brownberger for floor management.

The chair said other bills (13-77, 02/1956 and 15-35) could not be acted on immediately and will be taken up next week when sponsors and staff have final amendments. The committee adjourned at the call of the chair.

Votes at a glance: - Amendment (add Ethics Commission; limit list to governor, State Auditor, Ethics Commission): mover Senator Wallin; second Senator Bromberg; recorded vote: Chair Roars Aye, Vice Chair Castaneda Aye, Senator Barta Aye, Senator Brownberger Aye, Senator Lee Aye, Senator Wallin Aye; outcome: approved 6-0. - Amendment (change "and" to "or" on page 2, line 7): mover Senator Brownberger; second Senator Wallen; recorded vote: Chair Roars Aye, Vice Chair Castaneda Aye, Senator Barta Aye, Senator Brownberger Aye, Senator Lee Aye, Senator Wallen Aye; outcome: approved 6-0. - Final disposition on 16-01: Motion for due pass as amended: mover Senator Brownberger; second Senator Wallen; recorded vote: Chair Roars Aye, Vice Chair Castaneda Aye, Senator Barta Aye, Senator Brownberger Aye, Senator Lee Aye, Senator Wallin Aye; outcome: approved 6-0.

Context and next steps: committee members directed legislative counsel to resolve final drafting details (placement of "absent good cause" and minor grammatical changes) and indicated that if 16-01 proceeds to conference or the floor there may be further debate about which agencies should be able to hire counsel through the appropriations process versus which entities should receive a protected SAG designation. The committee postponed consideration of other bills until the chair calls the next meeting.