The Dunleavy administration ignored the legislative limits placed on the hiring of former President Donald Trump’s lawyer for $600 an hour to lead its continuing anti-union crusade.

A legislative audit has concluded that the Dunleavy administration acted illegally, spending $315,034 that it did not have legislative authority to spend with Consovoy McCarthy. The state has spent far more than that with the law firm on this case, but the audit covers only two years.

The Dunleavy administration, which lost its anti-union case before the Alaska Supreme Court in a unanimous ruling, is still trying to get the U.S. Supreme Court to give it a victory. Here is backgound on the case.

In essence, Dunleavy wants to make it more difficult for state employee unions to collect dues.

In consecutive years, the Legislature inserted this language in the state budget that appropriated money for all civil cases except for contracts related to the anti-union crusade, known as the Janus case.

It also included this language that allowed the attorney general to continue the anti-union crusade, but limited the use of Outside attorneys on the crusade to $20,000 a year.

The rest of the crusade could be paid for with in-house attorneys employed by the state. The dual appropriations came about because of an air-tight strategy devised by legislative finance experts and Reps. Andy Josephson and Matt Claman.

Dunleavy vetoed this language the $20,000 appropriation for Outside attorneys on this effort in both 2020 and 2021. The attorney general’s office ignored the legislative prohibition that said its main appropriation could not be used to hire Outside attorneys on the crusade.

The Dunleavy administration spent a total of $315,034 with Outside lawyers during those two years, even though the law said it could not do so.

“The attorney general’s decision to spend without authority appears to have violated state law,” the audit says.

Here is the complete audit.

“The decision to pay outside counsel for services to the interpretation of Janus v. AFSCME (Janus) from an appropriation that expressly prohibited the expenditures likely violated AS 37.07.080(a) and Article IX, section 13 of the Alaska Constitution,” the audit found.

Attorney General Tregarrick Taylor said his office did nothing wrong in ignoring the law because the law was unconstitutional.

Taylor said his department gave itself reasonable advice that the legislative language stopping spending with Outside attorneys could be ignored on constitutional grounds. The department acted on the reasonable advice it gave to itself, he said, which was reasonable.

He said the legislative attorney was also reasonable in declaring that the spending was illegal.

In a case like this where everyone is reasonable, there is nothing more to say, Taylor said.

“Having dealt with many audits in my private career, the question for the auditor is always whether the entity relied on reasonable legal advice—not whether the legal conclusion is correct,” said Taylor. “If the client relied on reasonable legal advice, it should be the end of story for the auditor.”

But it’s not the end of the story.

Reasonable attorneys for the Legislature and an attorney hired by the legislative auditor claimed the attorney general had it wrong and that the Legislature was within its rights.

The Legislature did not prohibit the governor or the AG from pursuing the crusade. It only said the department could not use money from its main appropriation to pay for Outside attorneys to support the crusade. The AG claimed the Legislature could not put this limit on him.

“The decision to pay outside counsel for services to the interpretation of Janus v. AFSCME (Janus) from an appropriation that expressly prohibited the expenditures likely violated AS 37.07.080(a) and Article IX, section 13 of the Alaska Constitution,” the audit found.

The next step here is unknown. The Legislature could challenge the Dunleavy administration in court for the appropriation violation or legalize it retroactively. It could also ignore the matter. Because this deals with the appropriation power of the Legislature, a topic dear to many with knowledge of the institution, a court fight is certainly possible.

Matt Buxton has more coverage here.

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