Barbieri’s ‘Office of Legislative Counsel’ bill draws lots of questions

Lawmakers on the House State Affairs Committee had plenty of questions this morning about Rep. Vito Barbieri’s bill to set up a separate “Office of Legislative Counsel” to provide legal opinions for the Legislature, sidestepping the state Attorney General’s office - and cutting its budget and staff to fund the new office. Barbieri, who is a lawyer but is not licensed to practice in Idaho, said he sees an “inherent conflict of interest” in the attorney general providing opinions to the Legislature; asked for an example, he cited his health care nullification bill, which the attorney general advised was unconstitutional. “That purported to be a legal opinion but in having come before the bill was even introduced, it became a political opinion,” Barbieri told lawmakers. “And these kinds of conflicts need to be alleviated or at least avoided.”

Rep. Elfreda Higgins, D-Garden City, responded, “I fail to see how that’s a conflict.” She asked if Barbieri’s bill set the stage for both the House and Senate to say they wanted their own lawyers, and the minority and majority too. “Couldn’t everybody just stand up and say, ‘Well, I want my own attorney that will say what I want them to say?’” Barbieri responded, “The Legislature already has the power to hire its own attorneys, so this is not adding a new power or a new policy.” Given that response, Higgins and other committee members questioned why the bill was needed.

Rep. Lynn Luker, R-Boise, a lawyer, questioned how a two-attorney “Office of Legislative Counsel” would compare to the broad array of legal expertise the attorney general’s staff has now, on topics ranging from public utilities to natural resources to Medicaid. Barbieri said, “That is certainly a point well taken,” but said he thought “two attorneys should be sufficient.”

Rep. Frank Henderson, R-Post Falls, questioned what would happen when an attorney hired by the Legislature had a different opinion than the state’s elected attorney general. “What if they’re in conflict and it is a constitutional question? Who rules? Who decides?” he asked. “That is precisely the point, Rep. Henderson, is that you decide,” Barbieri responded. “The Legislature will make that determination.” The committee ran out of time and will continue its hearing on the bill, HB 278, tomorrow; a representative of the attorney general’s office is scheduled to testify next.