Governor didn't first consult attorney general
Posted: July 4, 2006
Madison - Three weeks after taking office, Gov. Jim Doyle bypassed the normal process for hiring outside attorneys when he signed a contract with a Milwaukee lawyer to negotiate casino agreements with Indian tribes.
A year and a half after Doyle hired Milwaukee attorney William Jennaro, the state Supreme Court ruled that the governor did not have the authority to sign the sweeping compacts Jennaro helped negotiate. The legal turmoil resulted in one tribe refusing to turn over $30 million to the state.
Under the state's standard procedures, the governor first asks the attorney general for legal help. If the governor is turned down - because the attorney general doesn't have enough staff or is short on expertise in a particular area - he then hires outside counsel.
But in this case, Doyle hired a lawyer without consulting Attorney General Peg Lautenschlager.
Doyle, who was elected in 2002, preceded Lautenschlager as attorney general. Jennaro's hiring marked one of Doyle's first actions after he and fellow Democrat Lautenschlager took office in January 2003.
Doyle said recently he had the authority to hire Jennaro. Doyle's aides said he didn't consult Lautenschlager because the matter was urgent, with some old compacts close to expiring.
His aides noted that Doyle had to immediately address a $3.2 billion budget shortfall, and money from the new compacts was needed to help balance the books.
They also said he did not confer with her because state law gives the power to negotiate with the tribes exclusively to the governor.
But Michael Bauer, Lautenschlager's administrator of legal services, said the law, in his view, requires the governor to ask the attorney general for legal help before hiring an outside lawyer. Lautenschlager would have gladly helped negotiate the deals, he said.
State law says the governor can hire an attorney to "assist" the attorney general if he believes it is in the public interest. It does not explicitly say he must get her approval, but it does say he can replace the attorney general only in limited circumstances, such as when there is a conflict of interest.
Neither Bauer nor Doyle's aides could cite another example of Doyle's hiring outside counsel without Lautenschlager signing off on it. Doyle aide Dan Leistikow noted that in 1995, then-Gov. Tommy G. Thompson hired Whitewater prosecutor Kenneth Starr to represent the state in a court case on school vouchers over the objections of Doyle, who was then attorney general.
In late 2002, Doyle's transition team asked the Department of Justice - which he still headed as attorney general - to outline legal issues surrounding compact negotiations.
Hiring defended
Stan Davis, who served as Doyle's chief legal counsel at the time, said Assistant Attorney General John Greene urged him to start negotiations promptly because some tribal compacts were about to expire and because of the issues raised in a lawsuit filed by Dairyland Greyhound Park.
In that lawsuit, which is now before the state Supreme Court, the Kenosha dog track argues Indian casinos are operating illegally because of a 1993 constitutional amendment limiting gambling.
Davis said the law does not require the governor to get approval from the attorney general to hire a lawyer.
Sean Dilweg, the Department of Administration executive assistant who helped negotiate the deals, said Doyle's top aides needed help with negotiations because they were also working on a state budget that would rely on about $100 million a year from the casinos.
"It's common courtesy to have the attorney general sign off on these things," Dilweg said. "(But) it's clear under state law the governor can make the decision if it's in the public interest . . . "
But Bauer, who works for Lautenschlager, said the attorney general must be consulted.
"If the governor or any agency wants to go outside for counsel, the first place they have to go is the Department of Justice," he said. He noted that Doyle has followed that procedure in all other cases.
The deals Jennaro helped negotiate brought in record sums while allowing new games, such as poker and roulette, and not setting expiration dates. Republicans opposed the deals, saying they were too generous and calling them payback for the nearly $1 million the tribes spent to help Doyle and other Democrats in 2002.
After Republican legislative leaders sued Doyle over one of the deals, the state Supreme Court ruled that Doyle exceeded his authority. The court will have an opportunity to reaffirm or roll back that ruling soon, when it issues its decision in the Dairyland case.
After the Supreme Court decision, talks have stalled with the Ho-Chunk Nation. The Ho-Chunk recently paid the state $30 million but have refused to pay another $53 million the state says is owed.
The state and tribe have called in an arbitrator on the matter. Doyle asked Lautenschlager to help in those talks, but Lautenschlager refused - in part because she had no role in the initial negotiations. As a result, the state called in Milwaukee attorney Matthew Flynn, who has billed taxpayers about $378,000.
Jennaro was paid $125,000 for his work on the compacts in the spring of 2003. He did not bill the state for another $39,900 in legal fees that year, records show.
A regular donor to Democrats, Jennaro gave Doyle $2,750 between August 2003 and March 2004. He did not donate any money to Doyle before or after that period.
Jennaro did not return a phone call seeking comment, but Dilweg said the donations were in no way linked to the legal work.
Steve Schultze of the Journal Sentinel staff contributed to this report.