Pair of bills limit AG power

By Bobby Harrison/NEMS Daily Journal

JACKSON – Each chamber of the Mississippi Legislature has now passed its version of legislation designed to limit Democratic Attorney General Jim Hood’s ability to hire outside attorneys to pursue lawsuits on behalf of the state.
In past years, the Republican-led Senate has passed legislation dealing with Hood, but it died in the Democratic-controlled House. Now with Republicans in charge of both chambers for the first time since the 1800s, it seems likely some form of the legislation will pass this term.
Hood does not like it.
“The attorney general is put in place to defend the state’s interests and to provide a unified voice to the state on all legal matters,” said Hood, who has said he would challenge in court any legislation that limits what he has said is his constitutional authority.
HISTORY
Republicans have long complained about multimillion-dollar lawsuits won by Hood and his predecessor, Mike Moore, who have filed and won suits against a number of major corporate entities ranging from tobacco to pharmaceutical companies.
Republicans have been particularly critical of the multimillion-dollar contingency fees won by the private attorneys hired by the attorneys general, claiming Hood and Moore have rewarded political contributors by giving them the opportunity to make large sums of money on the cases. Hood and Moore have been quick to point out that the attorney fees were negotiated apart from the settlement of the lawsuit and took no money away from the state.
They also have been quick to point out that the attorneys spent their own money – not state funds – to pursue the expensive lawsuits and would have made nothing if they did not prevail. Hood said the outside counsel is hired when the state does not have the resources or expertise to pursue the lawsuit on its own.
The Mississippi Supreme Court is considering cases first filed by former state auditor and current Gov. Phil Bryant and now by Auditor Stacey Pickering, who claim those fees the attorneys received are actually state funds and it is up to the Legislature to pay the attorneys for their work.
In past years, the legislation passed by the Senate, but killed in the House was far-reaching, including provisions:
• To cap the fees attorneys could earn.
• To require Hood to bid out the legal services.
• To require a separate board to review any contract the attorney general enters with a private attorney.
This year, all those issues appear to be off the table. It appears a Republican Legislature is not going as far this year in trying to enact laws affecting the authority of Mississippi’s sole statewide elected Democrat.
PROPOSALS
The bill passed by the House would allow any agency to hire its own attorney. Technically, most state agencies are represented by attorneys who are on Hood’s staff.
In the past, there have been instances where the agency director has opposed lawsuits filed by the attorney general with the aid of outside counsel.
Former Medicaid Director Bob Robinson, for example, an appointee of then-Gov. Haley Barbour, opposed Hood’s lawsuits to recoup money from pharmaceutical companies. Hood alleged an elaborate scheme that the AG said resulted in the state being overcharged for drugs for Medicaid recipients.
In the 1990s, then-Gov. Kirk Fordice opposed Moore’s lawsuit that resulted in a multibillion-dollar settlement for the state with big tobacco companies.
The House bill would not prevent the attorney general from filing such lawsuits, but would allow the agency head to hire an attorney to argue against the attorney general in court. That, presumably, would make it more difficult for the attorney general to prevail if it was apparent that not all elements of state government were on board with the lawsuit.
“If this bill passes, then agency heads with agendas and interests of their own will be allowed to pursue those interests on the taxpayers’ dime over the state’s interest as a whole with no oversight,” Hood said.
But others disagree.
“The agency heads have a right to hire an attorney of their choice,” said Rep. Jeff Smith, R-Columbus.
The Senate proposal, on the surface, seems less burdensome to the attorney general. It would put into law essentially the same contingency fee schedule Hood’s office already uses when hiring outside counsel. It also would require the attorney general to post the contracts with private attorneys on his web page, which Hood already does.
The Senate proposal also would set up a special commission – consisting of the governor, lieutenant governor and secretary of state – from which an agency head would have to obtain approval to hire a separate attorney.
Sen. Hob Bryan, D-Amory, said at first he thought the legislation would not be that disruptive to the practice currently followed by the attorney general. But recently on the Senate floor, upon questioning Judiciary A Chair Briggs Hopson, R-Vicksburg, he said he discovered some problems with the bill.
Bryan asked what would happen in a case in the mid-2000s when Hood filed a lawsuit in bankruptcy court against WorldCom, now MCI, that resulted in a settlement for the state of about $115 million in back taxes. The Department of Revenue opposed the lawsuit and wanted to sue for only $3 million.
In that case, Hopson told Bryan that, if the commission approved of an outside counsel for the Department of Revenue, then the attorney general’s case could not continue and the state would lose more than $100 million in back taxes a bankruptcy judge agreed was owed to the state.
Hopson said there might be instances in the future when an outside counsel hired by an agency head would get a better settlement for the state than the attorney general.
“This will be utilized (by agency heads) in rare instances in my estimation,” Hopson said. “It will be a rare occasion when we have a dispute.”
In the coming weeks, the House and Senate will try to work out differences in the legislation.
bobby.harrison@journalinc.com