Branstad can hire outside counsel to defend him in item-veto lawsuit

DES MOINES – At Gov. Terry Branstad's request, the Iowa Executive Council voted 3-1 Tuesday to hire outside legal counsel at up to $275 an hour rather than have Iowa Attorney General Tom Miller defend the governor against a lawsuit challenging his item veto of legislation designed to help keep Iowa Workforce Development offices open.

Branstad, a Republican, said he prefers to have Des Moines attorney Richard J. Sapp represent him in a lawsuit brought by five Democratic state legislators and the president of the largest state employees' union seeking to undo Branstad's veto of parts of Senate File 517 which they contend will lead to the closing of 36 offices designed to provide direct services to Iowans seeking employment, job training and other state services for jobless residents.

“Frankly, it's a situation where I don't have full confidence that we would get the best representation,” Branstad said in an interview concerning his request for outside counsel to represent him rather than Iowa's Democratic attorney general. “In this case I think there would be some cross pressure on the Attorney General's Office.

“I have full confidence in Mr. Sapp. I think he's got a great track record and so that's why I felt that on an issue of this importance to the future power of the governor and to control spending, I think it's important to be able to have the best counsel that you can have,” the governor added.

Branstad noted that Sapp currently represents the governor in a legal battle over project labor agreements and that the Des Moines attorney was on the winning side of a 2004 lawsuit brought by former House Speaker Christopher Rants, a Republican, against then-governor Tom Vilsack also alleging violation of veto powers. That issue stemmed from Vilsack's veto of business regulation changes and an income tax cut that Republicans argued were part of a policy bill and not subject to an item veto. The Iowa Supreme Court agreed and struck down the entire bill.

However, State Treasurer Mike Fitzgerald, the only Democrat on the Executive Council, called Branstad's action Tuesday a political vote of no confidence that will needlessly cost Iowa taxpayers money they shouldn't have to spend.

“I consider that a waste of taxpayers' money to spend that much money on outside counsel when we don't need to,” Fitzgerald said after Tuesday's council meeting. “This is all politics. We're spending thousands of dollars at the governor's request for his own political point of view. I think that's wrong.

“The people of Iowa voted overwhelmingly for our attorney general because he's got a long track record of being an expert,” Fitzgerald added. “He's proved his record beyond any question and now to request somebody that charges $275 an hour, it's just all politics and high-priced politics.”

Fitzgerald noted the Iowa Executive Council last year hired Lawrence Scalise, a West Des Moines lawyer and former Iowa attorney general, at $80 an hour to act as a special prosecutor to probe allegations that casino backers improperly passed contributions through a third party to former Gov. Chet Culver's re-election campaign. He said Branstad has agreed to pay Sapp more than three times that amount and a Sapp associate, Ryan Koopmans, a rate of $160 an hour.

“He may want to hire a couple of different law firms and spend outrageous money to argue this through the court,” the state treasurer said. “We have a system the taxpayers pay enough for it right now, and now we're going to pay three or four times as much to have this one issue litigated.”

Julie Pottorff, an Iowa deputy attorney general, noted in a letter last week to the council's acting executive secretary Jenna Deutmeyer that “based on the specific request for outside counsel by the governor, the attorney general has decided to step aside in this case and allow the governor to hire counsel of his choice” with the payment of fees at the agreed-to hourly rates to be paid from the state's general fund.

“You kind of get what you pay for, so to speak,” Branstad said.

The governor noted that Sapp has agreed to take less than his regular hourly rate to handle the item-veto lawsuit and the governor expects a successful defense of his budgetary action likely would have a long-term benefit in helping to control future states spending.

“This is a precedent-setting item-veto case,” the governor said.

“I'm the client and I think it's important to have someone that you have confidence in to represent you in that kind of a situation,” he added. “I think we've got an attorney here that is very capable and has handled other item veto cases successfully and I think he can do it in a very efficient way.”

Senate File 517 included language to prevent the governor from closing 36 workforce centers around Iowa. Branstad vetoed that portion of the bill, however, explaining it would limit his ability to streamline the agency's approach to assisting unemployed Iowans and Iowans looking for work.

The governor and Workforce Development have begun closing offices, many in smaller communities, and replacing them with self-help computer stations in public libraries and other places where Iowans can get help in finding jobs, filing applications and preparing for employment interviews.

The plaintiffs argue that although the governor has authority to use his line-item veto authority to strike specific items from budget bills, he cannot veto the provision to keep the offices open unless he also vetoes the money the Legislature designated for that purpose.