An Ada County District Court judge is considering whether to force Attorney General Raúl Labrador to appoint a special prosecutor in his lawsuit against the state board of education.
Labrador filed the case against the Idaho State Board of Education in June, saying closed door meetings where the board discussed the University of Idaho’s purchase of the University of Phoenixwere illegal.
Board members and staff, along with every state agency, are given legal counsel through the attorney general’s office. They said they relied on legal advice from their deputy attorney general, who attended each of these meetings, to ensure they were lawful.
Matt Freeman, the board’s executive director, said in legal filings he spoke with Labrador and Solicitor General Theo Wold hours prior to the filing of the lawsuit and spoke “openly and candidly.”
At the end of that conversation, Freeman said Labrador told him he was filing a complaint alleging open meeting law violations.
This creates a conflict of interest, according to the board, which should disqualify Labrador from leading the case.
“His office authorized the very conduct he is now suing over,” said Trudy Hanson Fouser, an outside attorney for the state board, during Thursday’s hearing.
The more this case drags on, Fouser said, the more strain it puts on the deal to acquire University of Phoenix, which hasn’t yet been finalized.
If authorized, it would be the second time this month a judge has disqualified Labrador from a lawsuit he’s filed against a state agency.
That case involves the Idaho Department of Health and Welfare and its administration of a pandemic grant program.
Ada County District Court Judge Lynn Norton ruled on August 10 that the attorney general couldn’t investigate the agency after his office under the previous administration advised IDHW their conduct was legal.
“It does not matter if the legal opinions were subsequently disavowed or withdrawn,” Norton wrote, pointing out Labrador’s move to invalidate prior legal opinions issued by the AG’s office. “What matters is that the legal advice was provided to IDHW as the client.”
Deputy Attorney General Timothy Longfield, arguing on behalf of Labrador Thursday, maintained no information used to craft the state board of education lawsuit stemmed from that phone call between Freeman and the attorney general.
Still, Fourth District Court Judge Jason Scott said he had concerns about the call, and the board’s deputy attorney general, Jenifer Marcus.
“She can’t functionally and effectively represent the board at that point because she’s got split loyalties between her boss, her employer, and her client,” Scott said.
Scott then posed a scenario in which he required the attorney general’s office to appoint a special prosecutor to handle the case with an order for Labrador not to relay to them any information obtained during the phone call.
“I don’t think we’d push back on that remedy,” Longfield said. “I don’t think it’s appropriate, but we wouldn’t push back.”
Scott didn’t immediately render a decision, but said it would “almost certainly” take no longer than a week to publish.
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