Legislative plan could save $600,000, with state attorneys handling anti-union crusade
Attorney General Kevin Clarkson’s office hired President Trump’s lawyers at $600 an hour on Aug. 2 to wage an anti-union crusade, citing as authorization a state regulation for “small purchases” that is only for use when legal services are “estimated to cost not more than $50,000.”
The no-bid contract with Consovoy McCarthy was “not to exceed $50,000.”
It was either evidence of incompetence, prepared by someone with no idea of the real cost of the crusade, or a sneaky attempt to evade state procurement rules that require competitive bids for higher amounts. I suspect it was the latter, the kind of thing an attorney general should investigate.
Law department Chief of Staff Ed Sniffen testified Jan. 31 that Clarkson picked Consovoy McCarthy for the no-bid contract because the company has what the General wants.
“I think he knew this was going to be an important and potentially contentious issue. And he wanted to have some of the best advice that he could have in the country. And he settled on this firm as a firm that could provide the state with that assistance,” Sniffen said.
And the General had to know that $50,000 would never be enough, which makes the original contract a total con job.
On Oct. 2, the attorney general’s office was already talking about how much more state money would be given to Consovoy McCarthy, as if everyone knew the first contract was deceptive.
At $600 an hour, $50,000 doesn’t last long. The attorney general’s office used a different regulation to increase the amount to $100,000 on Oct. 24, with no one in the Dunleavy administration bothering to explain why the original estimate had doubled in less than three months.
But that was just the start of the Clarkson plan to spend hundreds of thousands on Trump’s lawyers.
No one knows how much the crusade is going to cost or how long it will take. Consovoy is the lawyer who claims that as long as Trump is president he can get away with anything illegal.
The Clarkson ideological argument, backed by Gov. Mike Dunleavy, is that it should be harder for state unions to collect dues from members, with Clarkson advancing a theory that goes beyond the U.S. Supreme Court ruling in the Janus case—which said workers who are not union members don’t have to pay “agency fees.”
Clarkson and his $600-per-hour lawyers have been on a losing streak with his novel interpretation. Alaska courts as well as every federal court, arbitrators, state courts Outside and state labor relations agencies have said Clarkson is wrong.
The collective bargaining agreement signed by the Dunleavy administration Aug. 8 requires that union dues be deducted from the paychecks of bargaining unit members.
The Alaska attorney general has a vision of getting his claim before the U.S. Supreme Court in future years—after who knows how much the state will pay to his favorite lawyers in Washington, D.C.
The bills keep piling up.
After consuming the first $50,000 and the second $50,000, the state went through a wink-wink exercise of a competitive bidding process. To no one’s surprise the $600-per-hour guys picked earlier by Clarkson were deemed to be the best bet for Alaska.
The new contract is for $600,000, bringing the total so far to $700,000 for a case that is in state court in Anchorage. This is a long way from even getting to a lower federal court, let alone the U.S. Supreme Court.
On its bid for $600,000, Consovoy earned top marks for its proposal, but it was not the low bidder.
The Potomac Law Group said it would charge $400 an hour for attorneys with an average of 30 years experience, including extensive work before the Supreme Court.
Consovoy’s firm said it would have two lawyers at $600 an hour, doing three-quarters of the work, and one at $450 an hour.
“We look forward to continuing our partnership,” Consovoy wrote in the competitive bid offering, referring to the sole-source “partnership” that began in August.
The law firm Davis Wright Tremaine submitted a proposal and was ranked third. I don’t know how much per hour that firm proposed charging.
The request for proposals was set up so that 70 percent of the "evaluation criteria" were based on experience, qualifications and the organization, giving a big edge to Consovoy, as the company already handling the case because of the original “small purchase.”
For some reason, perhaps because General Clarkson wants to raise his reputation among right-wing groups Outside, he is determined to have Trump’s lawyers handle this work.
The Legislature does have an innovative solution in the works, however, thanks in large part to Anchorage Reps. Andy Josephson, Matt Claman and Gabrielle LeDoux, who are attorneys.
They are members of a budget subcommittee that proposed cutting contract funds from the state budget and allowing one or more of the 160 civil division lawyers on the state payroll to handle the Clarkson crusade, if he desires. State attorneys handle far more complex matters every day.
The subcommittee backed a plan to make a specific appropriation for Janus-related court work, limiting it so that the Dunleavy administration can’t shift hundreds of thousands at will. This language and appropriation limit deserves the full support of the Legislature.
The disappearance of the money shouldn’t be a surprise to Consovoy McCarthy because the request for proposals made it clear that “approval or continuation of a contract resulting from this is contingent upon legislative appropriation.”
There won’t be a legislative appropriation, under this new proposal.
There was some ho-ha from Sniffen that General Clarkson may try to find ways to fund the Consovoy contract and cut other things. For instance, maybe he could do away with consumer protection for Alaskans.
Sure, the General can do that if he likes. That would be an easy-to-understand example of mismanagement and misplaced priorities sure to become part of the recall campaign.
Sniffen tried to defend the Consovoy McCarthy relationship as the result of pure competition, neglecting to mention the sole-source $50,000 decision and the sole-source $50,000 boost that gave the company a giant edge over any competitor.
“Our contracts are put out for bid. It’s through a competitive process and the numbers come out the way they come out based on a review of all the applicants we receive. So the number—the rate per hour—isn’t really something that we have a lot of opportunity to negotiate,” he said.
Consovoy McCarthy is charging $200 an hour more than the Potomac lawyers said they would accept.
The Consovoy McCarthy business relationship with Clarkson’s department, now at $700,000 with no end in sight, is not the result of a competitive process. To portray it that way is dishonest.
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