State's $650-an-hour lawyer tells court 'state can't be held liable for violating constitution' in school funding case
The Dunleavy administration says it gave veteran Virginia attorney Elbert Lin a $650-per-hour contract because of his experience in dealing with freedom of religion, according to a March 21, 2023 memo from procurement officer Patricia Hull, released under a public records act request.
“The state of Alaska currently needs his advice on whether Alaska’s constitutional provision violates the free exercise clause by not allowing money to go to religious schools,” the Hull memo says.
In an unusual move, the state had Lin speak for it before the Alaska Supreme Court Thursday during oral arguments on the appeal of the landmark school funding decision. Here is a link to that court hearing.
The $50,000 no-bid Lin contract was authorized under a regulation that allows for no competition when the cost is $50,000 or less.
There was no reason to think the real cost would be $50,000, as the Dunleavy administration has routinely signed contracts for that amount—staying within the procurement rule set by 2 AAC 12.400(b) 7, only to amend them later for greater amounts. On June 12, 2024, Lin signed a contract amendment to double the cost to $100,000.
The original contract also said it was authorized by a separate regulation, 2 AAC 12.430. That regulation requires a written explanation about why the state didn’t use other competitive methods. The Department of Law now says that was a mistake and the contract was authorized only by the small purchase $50,000 rule.
The Anchorage Daily News coverage of the hearing said “the state’s argument before the justices Thursday did not focus on whether Alaska students could use public funds at private schools. Rather, the state made a legal argument focused on the difference between a ‘facial’ and ‘as-applied’ challenge. Elbert Lin, an outside attorney contracted by the state for the case, argued that the lawsuit should have been brought against individual school districts that allowed the allotments to be used at private schools, rather than against the Alaska education department as a whole.”
The state made this argument before Anchorage Superior Court Judge Adolf Zeman to no avail.
Neither the state education department “nor the attorney general has a general obligation ‘to ensure that a school district’s expenditure of public funds complies with state law,’” the state claimed.
The plaintiffs did not identify a legal source for the claim that the attorney general has an obligation to ensure that school district expenditures comply with state law, the attorney general’s office argued.
The Alaska Beacon coverage of the hearing quotes Lin as claiming it’s not the attorney general’s problem if something unconstitutional is happening with public money.
“It is irrelevant whether the provision might be applied unconstitutionally in the view of the plaintiffs or even this court,” he said. File suit against the school districts to address that alleged problem, he claimed. Here is the Alaska Beacon story.
And the Daily News included this quote from Lin, who said the school districts “are the ones who make the decisions about funding, so the state can’t be held liable for violating the constitution, because they’re not the ones who are undertaking that action.”
The conflict of interest demonstrated by the action and inaction of the attorney general may have led to the indefensible claim by the attorney general—that the allegation of unconstitutional spending by school districts is none of his business.
The statute the state is trying to defend came under scrutiny after the attorney general’s family publicized its plan for tuition reimbursement. “Thanks to Dunleavy’s 2014 statute, private schools have been added to the list of allowable vendors for parents,” wrote Jodi Taylor, wife of the AG and a leader of the Alaska Policy Forum.
Jodi Taylor successfully lobbied an Anchorage charter school, which was a public school, to change its rules to allow her family and others to use state money for private school tuition. Her husband’s name came up in a school committee meeting and the group wanted to seek his guidance.
The Taylor plan to use public funds for private school tuition was illegal, according to others in the AG’s office.
On November 16, 2023, Attorney General Taylor sent a directive to school districts about the parental notification law, a separate matter, that contradicted numerous claims the state made in the school funding case about having no authority over school districts.
In that letter to school districts, Taylor scolded them about the need to obey the 2016 parental rights notification law and said it had come to his attention that some districts were in violation and could face consequences.
About the use of public funds to pay a majority of the cost of private school tuition, however, he didn’t even send a nasty note about the constitutional question.
MEANWHILE:
The term of Ethan Schutt on the Alaska Permanent Fund Corporation board of trustees ends Monday. Schutt says he has heard nothing from Gov. Mike Dunleavy about whether he will be reappointed.
I asked the governor’s office Thursday and received no reply on whether Schutt would be reappointed or who will be named in his place. That Dunleavy has failed to inform Schutt speaks volumes.
You’ll recall that trustee Gabrielle Rubenstein, who Dunleavy recruited for the board, told staff members of the corporation in January that Dunleavy would not reappoint Schutt. Schutt is the most responsible and diligent member of the trustees.
Rubenstein’s early inside knowledge of Dunleavy’s plans, if it proves to be accurate, is another piece of evidence regarding inappropriate political interference with the trustees of the most important financial institution in Alaska.
Your contributions help support independent analysis and political commentary by Alaska reporter and author Dermot Cole. Thank you for reading and for your support. Either click here to use PayPal or send checks to: Dermot Cole, Box 10673, Fairbanks, AK 99710-0673.
Write me at dermotmcole@gmail.com.