If there’s one thing we’ve learned about the Office of Arkansas Secretary of State Mark Martin, it’s that they have absolutely no qualms about wasting taxpayer money. Whether it’s improperly using state-issued gas cards to pay for the commute to and from northwest Arkansas[foot]Hey…that sounds familiar![/foot], taking a full-time salary despite spending only about half your time in Little Rock actually doing your job, moonlighting as city attorney for Fairfield Bay while still on state time, or spending over $100,000 in FY13 alone on the illegal hiring of outside counsel, the Secretary of State’s Office is nothing if not profligate.
Even so, once a judge had explained to Martin, et al., that the hiring of outside counsel was illegal, I kind of assumed that they would stop that practice. And they did . . . for a while.
At the time of Judge Tim Fox’s disqualification of Quattlebaum, Grooms, Tull & Burrow from representing the Secretary of State, Martin’s office had spent “only” $1,137.50 in legal fees with Chisenhall, Nestrud & Julian. Checking the transparency website from time to time between August 12, 2013 and late November/early December, the Chisenhall fees were the only amount that ever showed up as SoS legal fees during the current fiscal year.
Imagine my surprise, then, when I checked the transparency site a few minutes ago and found this (click to enlarge):
That’s right — despite a clear order from a state judge that they were not allowed to hire outside counsel without permission from the Attorney General and Governor under Ark. Code Ann. 25-16-702 — the Secretary of State’s legal fees have gone from $1,137.50 to $27,349.91 in the last month.
How is that possible? Well, perhaps they actually asked the Attorney General for permission and the Governor okayed the hiring.
More likely, however, is that Augustine J. Kelly and Martha Adcock are the type of person[foot]read: idiots[/foot] who think that Judge Fox’s December 18, 2013 granting of a directed verdict in the AFOIA suit against the SoS — which, in addition to being wrongly decided, still has a Rule 59 motion pending and is still subject to appeal — somehow means that Fox’s disqualification of counsel on August 12 is no longer a valid ruling. It doesn’t.
The granting of a motion for directed verdict is a determination that the evidence presented is insufficient as a matter of law to support the underlying claim (in this case, the AFOIA violation). Granting the motion to disqualify counsel was a determination that state law prohibited Martin’s hiring of outside counsel. Whether Martin won or lost on the AFOIA case, he was still prohibited from hiring outside counsel because the law as applied to his hiring of Quattlebaum was not altered by the AFOIA decision.[foot]If you’re thinking, “man, Martin’s in-house attorneys should know this stuff,” you’ve clearly never met Kelly or Adcock.[/foot]
While all of the post-August payments of legal fees are troubling (at best), the payment to Quattlebaum, if it included any fees for the AFOIA suit, is particularly egregious. Only a group as utterly clueless and unconcerned with the law as Mark Martin & Co. would think they could pay the very firm that they were specifically held to have lacked the legal authority to hire in the first place.
The galling part of all of this? While Mark Darr certainly broke rules and laws and needed to resign because of those transgressions, his legal and ethical breaches were a drop in the bucket compared to the amount of public money that Mark Martin has wasted over the past three years. Martin’s bill for outside counsel alone over the past three years dwarfs Darr’s improper use of state credit cards by orders of magnitude.
Now, Martin has taken it a step further and actively thumbed his nose at a court ruling by doing the specific thing that the court said he could not do. Even if you want to make the argument that Martin’s violations of Ark. Code Ann. 25-16-702 prior to August 12, 2013, were accidental and lacked the necessary intent to justify removing him from office, you have to admit that hiring outside counsel after August 12, 2013, is a different matter altogether.
Yet, unless a grand jury is convened and this is dealt with through the courts, I have a sinking feeling that we’re going to be treated to four more expensive years of incompetence and disregard for the law from the Secretary of State’s Office.
UPDATE: Max notes, as I did in passing, that perhaps Martin sought clearance for these hirings.
While that’s possible, I certainly don’t think it’s even remotely likely. Nothing in what we’ve seen from Mark Martin during his time in office makes me think that he would deign to ask Dustin McDaniel for permission. After all, this is an office that argued that it had sovereign immunity in an AFOIA suit. Think about the absurdity in that statement, then ask yourself whether a person would make that argument would suddenly decide to follow a law that they have continued to contend does not apply to them.
Besides, asking permission now would be an admission by Martin that he should have asked permission before, which would make the $103k+ last year even more problematic in retrospect. And call me crazy, but I would be dollars to donuts that some or all of the money paid to Quattlebaum was for the AFOIA suit, and it wouldn’t make sense to ask permission to hire attorneys that had already been disqualified and were ostensibly playing no further role in the case.
Also — and this is the big one — the statute doesn’t technically say that Martin (or another officer) could get permission from the Attorney General, et al., to hire outside counsel. It says, ” If, in the opinion of the Attorney General, it shall at any time be necessary to employ special counsel to prosecute any suit brought on behalf of the state or to defend a suit brought against any official, [. . .] the Attorney General, with the approval of the Governor, may employ special counsel.” (Emphasis added.) It also says that no contract for legal services may be entered into by the Attorney General without the approval of the Legislative Council and the Governor.
So . . . to recap: (1) No, I don’t think Martin sought clearance from the Attorney General, though I will double-check this assumption tomorrow. (2) Yes, I think everything we know about Mark Martin’s tenure in office suggests that he took it upon himself to illegally hire and pay outside counsel once the directed verdict was entered in the AFOIA case. (3) Even if he did ask permission, I don’t think that makes things much better, since it would undermine his ongoing argument that the past hires of counsel were fine, because this law doesn’t apply to Mark Martin.
This might just get interesting.