March 6, 2015
FRANKFORT, Ky. – Kentucky’s attorney general race sneaked onto the Senate floor last week when state Sen. Whitney Westerfield tried to push through a bill that would affect the office and got caught up in a debate that he said likely will be used against him.
Westerfield, 34, a Hopkinsville Republican, is running for attorney general in the GOP primary and is sponsoring a bill that would restrict the attorney general’s ability to hire outside law firms to represent the state in lawsuits.
But Westerfield ran into trouble on the floor when he couldn’t answer basic questions about the size of the attorney general’s budget and the depth of cuts to it since the 2008 economic recession.
“Right now I don’t know, I can’t recall that line from the budget,” Westerfield said under questioning from Senate Minority Leader Ray Jones.
Later he acknowledged that answer may come back to haunt him.
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“I’d be surprised if somebody didn’t try using it (in the election cycle) but that’s not my job right now,” Westerfield said in an interview. “I want it to be my job next year.”
Senate Bill 118 deals with the issue of the attorney general hiring outside legal counsel and to represent the state on some matters and paying them based on the amount of money they recover.
The attorney general has traditionally done that in cases that involved a very specialized type of litigation when there was no lawyer on staff with that sort of expertise. Allison Martin, a spokeswoman for Attorney General Jack Conway, said the attorney general’s office has only hired lawyers on a contingency basis eight times since 2008.
The conservative American Legislative Exchange Council, which is funded largely by businesses and their owners, including David and Charles Koch, has pushed for legislation around the country to limit such contracts.
Westerfield’s bill would increase the amount of transparency involved so that people can more easily find out such things as which firms are being hired and how much they are being paid. That portion of the bill got widespread support.
Democrats, however, balked at a portion of the bill that says contingency fees can’t be predicated on fines and penalties that are paid to the state as a result of the litigation.
Jones, also a lawyer, unsuccessfully sought to remove that language from the bill, arguing that the state would have difficulty in hiring outside lawyers on a contingency basis in some lawsuits in which the state isn’t expected to recover much in restitution but is expected to bring in significant money in fines and penalties.
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That, said Jones, is likely to mean the state has to pay outside lawyers higher hourly fees — which could mean a big cost to taxpayers if the state is unable win large settlements or a court is unwilling to impose significant fines and penalties.
Westerfield acknowledged that the legislation could make the attorney general’s job more difficult but contended that his bill is simply an attempt to be a better steward of taxpayer money.
“I don’t think it should be about the attorney general’s interests, whether that’s me, or (Democrat) Andy Beshear or (Republican) Mike Hogan,” he said. “It’s about the taxpayer’s interests and the point is to maximize the return to them and I don’t believe it does shortchange the A.G.”
Additionally, Westerfield said, he doesn’t believe lawyers working for the state should be in a position in which harsh fines could enrich them. “I think it’s crossing a line allowing someone who’s got the prosecution power of the entire state to have a pecuniary interest in pushing extra hard to get the penalties and the fees,” he said.
Westerfield’s bill, Martin said in a statement, “shows a basic lack of understanding of the Office of the Attorney General and its budget.”
But, Martin said, having the ability to offer to hire on a contingency basis is critical. “The model makes sense for the Commonwealth because attorneys are only paid if there is a recovery,” she said.
Additionally, Martin said all legal representation contracts already “go through a publicly-scored request for proposal process and are reviewed by the legislature and the Finance Cabinet.”
Beshear, the son of Gov. Steve Beshear who is the presumptive Democratic nominee for attorney general, said in a statement that he sided with Jones.
“Any bill that creates more transparency for the people of Kentucky is something we should consider. However, flexibility is critical as the Attorney General Office’s general fund allocation has already been cut by close to 40% in the last six years,” he said.
Beshear, through a spokeswoman, declined to comment on Westerfield’s inability to talk about the office’s budget.
Hogan, who is running against Westerfield in the GOP primary, didn’t return a call seeking comment.
And while Westerfield refused to accuse Jones of playing politics with his questions about the attorney general’s budget, he said, “I have an assumption about that. I hope I’m wrong.”
By Joseph Gerth, The Courier-Journal