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When Missouri’s treasurer and secretary of state face off in court this month over a proposed constitutional amendment set to be on the 2022 ballot, both sides will be represented by private attorneys — at a cost to taxpayers of more than $800 an hour.
The reason: Attorney General Eric Schmitt bowed out of the case, citing a conflict of interest his office said it is not ready to share publicly.
The attorney general’s decision surprised many longtime observers, who note the office always defends the secretary of state in these types of ballot-language lawsuits — especially since the office plays a role in signing off on ballot language.
Jim Layton, who spent most of his 22 years in the Missouri attorney general’s office as the state’s solicitor general, said he can’t recall a time when the attorney general wasn’t involved in a case like this.
“I’ve never known of the attorney general’s office not to defend the ballot summary,” he said. “If there is a prior instance of that, I don’t know what it was.”
Layton said it’s not unusual for the office to be on both sides of a case, with a “conflict wall” established within the office to ensure both sides are represented fairly.
In the rare instance where two statewide officials are on opposite sides of litigation, the attorney general is typically on one side or the other, such as when the office represented former Gov. Jay Nixon when he was sued in 2011 by then-Auditor Tom Schweich.
“In prior administrations, the feeling was that if there’s any way for us to do it in house, we do,” he said. “That’s our job. That’s the statutory obligation, in part, to avoid putting the taxpayer on the hook for private lawyers. And we went out only when we had to go out. I’m not sure if that is still true.”
Andrew Hirth, who served as deputy general counsel for former Attorney General Chris Koster, said he’s confident the decision to opt out of the lawsuit had more to do with politics than policy.
Treasurer Scott Fitzpatrick, Secretary of State Jay Ashcroft and Schmitt are all Republicans who were re-elected last year. Fitzpatrick is running for state auditor and Schmitt is running for U.S. Senate in 2022.
“I’m certain it’s actually a political decision on their part,” he said, “Trying to avoid offending either Fitzpatrick or Ashcroft, so just staying out of it.”
Chris Nuelle, spokesman for the attorney general’s office, said under Schmitt expenditures out of the legal expense fund, which the attorney general manages, have been “historically low compared to other attorneys general.” He added that Schmitt has also avoided using outside counsel in cases such as opioid litigation that “has undoubtedly saved taxpayer money.”
Fitzpatrick vs. Ashcroft
Fitzpatrick filed a lawsuit in July against Ashcroft over a proposed constitutional amendment that would change how his office invests taxpayer money.
In the lawsuit, Fitzpatrick accuses Ashcroft of writing a misleading description of the proposed change that could push people to vote against it.
The treasurer’s office hired Chuck Hatfield as its lawyer. His firm will be paid $495 an hour.
JoDonn Chaney, spokesman for the secretary of state, said Ashcroft requested the attorney general represent the office but the request was declined without a specific reason cited.
“Our office later, via phone conservation with the attorney general’s office, was informed there was a conflict of interest and permission was given to hire outside counsel,” Chaney said.
Ashcroft’s office hired the law firm of Marc Ellinger for $325 an hour.
Nuelle said Schmitt couldn’t get involved because there was a conflict. He declined to share what the conflict was.
Layton said there is something “unseemly about the taxpayer paying for lawyers on both sides of the lawsuit.”
“You can almost always do this cheaper in house than hiring somebody outside,” he said. “There could be some conflict. But the problem with making that argument is that the attorney general’s office can, under the ethical rules, create a wall and have someone in the office handle the case despite the conflict. And they’ve chosen not to do that here.”
Missouri Sunshine Law
The dynamic in the Ftizpatrick lawsuit against Ashcroft is similar to how things played out when the Missouri House was sued two years ago over allegations it was violating the state’s open records laws.
In Oct. 2019, the nonprofit Sunshine and Government Accountability Project filed a lawsuit against the Missouri House over an internal rule it enacted to allow lawmakers to shield certain constituent records and party strategy from the public.
House leadership turned to the attorney general to represent it in the lawsuit, but Schmitt cited a conflict that prevented the office from participating.
The House ended up hiring Ellinger at a cost of $280 an hour. Half of the hourly total is being paid by the House and the other half is being paid by the state’s legal expense fund.
The total paid out in the ongoing lawsuit thus far is nearly $30,000.
More recently, Schmitt’s office determined it could not investigate a Sunshine Law complaint against Gov. Mike Parson because it considers the governor’s office a client.
That decision came in response to a complaint filed by The Independent after Parson’s office refused to provide resignation letters from top administration officials who left their jobs earlier this year with no explanation.
The attorney general’s office refused to investigate it, arguing that the governor’s office “is a client of our office.”
Transparency advocates responded with shock.
The attorney general represents every state agency in litigation, and critics worried Schmitt’s actions could leave Missourians with little means of recourse when they believe the Sunshine Law has been violated.
Such a policy would be a departure from Schmitt’s immediate predecessor, now-Sen. Josh Hawley, who twice launched investigations into possible Sunshine Law violations in the governor’s office during his two years as attorney general. Hawley argued at the time that the attorney general’s clients are “first and foremost the citizens of the state.”
One of those investigations was still ongoing when Schmitt took over the office. He closed it in 2019.
Requests for records by The Independent turned up no correspondence, including legal advice, between the attorney general’s office and governor’s office regarding its Sunshine Law complaint or the resignation letters.
Dave Roland, the director of litigation for the Freedom Center of Missouri, a libertarian nonprofit that advocates for government transparency, said the lack of records doesn’t shut out the possibility that the attorney general provided legal advice over the phone or in-person — which could result in a legitimate conflict of interest for its office.
But if the attorney general’s office didn’t provide legal counsel regarding this specific complaint, Roland said Schmitt’s refusal to investigate is suspect.
“The idea that someone one day might need them for advice on a topic does not mean that there is an existing attorney-client relationship for the purpose of that issue,” Roland said.
Nuelle reiterated last week that the attorney general’s office would not comment on its attorney-client privilege relationship with the governor’s office.
“What I can say is, the attorney general’s office has been a leader in investigating and taking legal action for Sunshine Law violations,” Nuelle said. “In fact, by our estimation, under Attorney General Schmitt, the office has filed more Sunshine Law lawsuits than any other attorney general and we will continue to enforce the Sunshine Law.”
Roland said it’s important to have a clear policy in place so Missourians know it’s being applied evenly.
“We don’t want these decisions to be political,” Roland said. “We want there to be a principled approach that the office is going to apply in every situation about whether or not it will treat another government official as a client.”
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