House Bill 101 — Attorney general

House Bill 101 — Attorney general

by
Parrish Miller
February 19, 2021

Bill Description: House Bill 101 would give all state offices, boards, commissions, and entities the option to hire their own legal counsel rather than obtain legal services from the Attorney General.

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Analyst Note: House Bill 101 amends numerous sections of Idaho Code to allow the state's many offices, boards, commissions, and entities the option to hire their own legal counsel rather than obtain legal services from the Attorney General.

This is a significant shift in state policy and it could have equally significant repercussions. Perhaps the most notable is the cost implications. The Attorney General currently has 127 Deputy AGs with a personnel cost appropriation of $16.65 million, with additional associated costs. Reducing these positions by half could save Idaho taxpayers nearly $9 million per year. 

On the other hand, the state entities that opt out of obtaining legal services from the Attorney General may need additional funds to pay their own legal counsel. Indeed, this bill anticipates increased budgets for this purpose, with one modified section saying, "Any state entity that intends to employ separate counsel instead of or in addition to the attorney general's office for its legal services ... must provide the estimate of cost for separate counsel in its budget request required under section 67-3502, Idaho Code."

It is unclear how adopting House Bill 101 would affect the total spending on government legal services in Idaho, but it is possible that such expenses would increase significantly. It is also possible that they could decrease, although this outcome seems less probable. 

Beyond the cost issue, there are political and policy ramifications to this change. For better or worse, having most of the state's legal services provided by the Attorney General results in a degree of consistency in the political outlook and positions advocated and defended in the state. 

If state entities are empowered to hire their own counsel, it is likely that the political and policy preferences of the various agency heads and their management staff will be reflected in the legal counsel they employ. Such changes could be positive for freedom and the free market, or they could be quite negative. It will likely vary considerably between entities. 

In short, House Bill 101 presents a number of serious questions and a host of unknowns with which lawmakers must grapple. The potential for unanticipated cost overruns and policy shifts that run counter to the Legislature's intentions are significant risks that merit thoughtful consideration and in-depth analysis.

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