Though state law requires all agencies to report what they spend each year to hire outside attorneys, Attorney General Scott Pruitt has failed to follow that law since 2012, omitting his agency from reports he must compile, an investigation by The Frontier has found.
Pruitt has engaged in years of complex litigation against the Environmental Protection Agency — which President-elect Donald Trump has nominated him to lead — as well as the U.S. Department of Health and Human Services and other federal agencies. Pruitt is awaiting a confirmation hearing, which is scheduled for Jan. 18 before the Senate’s Environment and Public Works Committee.
Private attorneys from firms in Colorado and Washington D.C. represented the state in some of those cases Pruitt filed. Private attorneys from a third firm, based in New Mexico, represented the state in a lawsuit in federal court to halt construction of a Broken Arrow casino.
Pruitt’s office signed a $500,000 contract with the firm involved in the casino case, records show. A summary of information about the contract and others signed by the AG’s office can be found using key words to search his website.
However, Pruitt did not include spending on that contract or any others by his own office in annual reports he is required by state law to compile. Those reports show how much dozens of state agencies spend to hire attorneys not employed by the state of Oklahoma.
The Frontier first asked his office for records last month showing how much it spent each year on outside legal contracts. Though the office posted the reports to the attorney general’s website late Tuesday, they do not include Pruitt’s office in the list of reports.
In an email Wednesday evening, AG spokesman Lincoln Ferguson said “the Attorney General’s Office is in no way violating the law.”
When asked why the agency failed to disclose any spending on outside attorneys as required by law, Ferguson stated in an email that the process had changed.
“As a part of the effort to increase accountability in how agencies hire outside attorneys, there was a change in the 20i process from merely a reporting mechanism by state agencies to one that required agencies to seek approval” for hiring attorneys.
“Because the 20i is the process by which the Attorney General’s Office now approves other agency’s hiring of outside counsel, the AG’s office no longer tracks outside counsel costs internally through the 20i.”
However, the state law has required such approval from the attorney general since it was passed in 1995. It also requires that state agencies select attorneys from a pre-approved list. Several of the attorneys hired by the AG’s office are not included on Pruitt’s list of approved attorneys.
Finally, the law requires the attorney general to compile a report each year and provide it to the governor and legislative leaders.
“The Attorney General shall, on or before February 1 of each year, make a written report on legal representation. … The report shall include a brief description of each contract, the circumstances necessitating each contract, and the amount paid or to be paid under each contract.”
The AG’s Office provided a summary of cases which indicates the office has spent $1,028,486 on outside attorneys since Pruitt took office. (The summary can be found below)
However, those figures do not include payments to the Washington D.C. law firm, Baker Hostetler, that has represented the state in its lawsuits against the EPA. Ferguson said a partner in the firm, David Rivkin Jr., represented the state at no cost to the state.
Rivkin has been quoted in several national media outlets praising Trump’s choice of Pruitt to lead the EPA. Rivkin is a former White House associate counsel and advisor. According to his firm’s bio, he “played a significant role in development of Reagan and H.W. Bush Administration regulatory and legislative proposals affecting natural gas and electric utility industries.”
Records show Rivkin contributed $1,000 to Pruitt’s campaign in 2014 at a time when he faced no opponent.
Pruitt has not responded to requests for an interview from The Frontier. He has stated that his office’s scrutiny of state agency legal contracts has saved taxpayers millions each year.
“At the beginning of AG Pruitt’s administration state agencies spent almost $11.78 M in FY 2011 on outside legal counsel,” Ferguson’s email states. “AG Pruitt has made it a priority for the attorneys in the AG’s office to handle most litigation to lower these costs and increase accountability. By FY 2015, through these efforts, outside counsel usage was lowered to $6.8 M in FY 2015.”
Former Attorney General Drew Edmondson complied with the law requiring discolosure of outside legal costs, listing in the reports what his office spent before Pruitt took office, records show. Edmondson said he does not believe the attorney general’s office is exempt from the law.
“I thought the requirement to file those reports applied to all agencies,” Edmondson said. “We were under the same requirement as any other agency.”
The only report in which Pruitt included his office’s spending was in FY 2011, which ended June 30, 2011. Pruitt reported spending about $70,000 on private attorneys that year.
Meanwhile, the last report Edmonson filed in FY 2010 shows the office spent about $40,000.
During the next fiscal year, Pruitt’s first full year in office, he omitted his office from the report. Reports in 2012, 2013, 2014 and 2015 also do not include spending by the AG’s office on outside legal counsel.
Pruitt’s office has filed multiple federal suits against the EPA, challenging the agency’s authority to regulate mercury and other toxins, pollutants that create regional haze and challenged the way in which EPA has sued unrelated entities.
Pruitt also sued over a voluminous records request he made to the agency under the federal Freedom of Information Act, which was dismissed by a federal judge for being overly broad. The EPA estimated that request would have cost $10,000, records show.
In a 2014 interview with NPR’s State Impact, the AG defended his record of suing the EPA. The state lost its challenges to the EPA’s mercury toxins rule and what it called the EPA’s “sue and settle” practices as well as the FOIA lawsuit.
“The court put a stay in place, preventing our utility companies from having to spend two-plus billion dollars,” Pruitt told State Impact. “That saved us three years of costs, and, oh by the way, I think led to some alternative plans that were perhaps more accommodating.”
An appeals court stayed Pruitt’s challenge to the regional haze rule. If confirmed to lead the EPA, Pruitt could wind up in the odd position of being both plaintiff and defendant in his own lawsuit.
Records show Pruitt was joined in one of the lawsuits by a group called the Oklahoma Industrial Energy Consumers, which describes itself as “an unincorporated association of companies with facilities in Oklahoma that require significant energy usage.”
OIEC’s executive director contributed more than $2,000 to Pruitt’s campaign for attorney general, as did many other energy industry executives.
‘Enforcer in chief’
Pruitt’s nomination to lead EPA has received praise from business interests, the energy industry and conservatives and has been blasted by environmental groups and Democrats.
Mark Hammons, an Oklahoma City attorney and chairman of the state Democratic Party, said he was troubled that Pruitt has not disclosed how the state funded its ongoing lawsuits against the EPA.
“I’m frankly shocked that he hasn’t filed reports,” Hammons said.
“I don’t know how you answer that or get away with that. That’s just fundamental. … You are the law enforcer in chief. If one of your agencies was doing that, it would be your job to hold them accountable and yet you’re not following the law.”
Hammons said the issue raises a question as to whether private interests have been funding Pruitt’s lawsuits against the agency he has been selected to lead.
He said it is highly unlikely that private attorneys based in Washington D.C. are representing the state in suits against the EPA without someone paying hourly fees and costs.
The lawsuits typically seek relief from government policies, including the EPA’s interpretation of the Clean Air Act, and don’t involve monetary damages that could pay a fee.
“Government litigation is almost always is an hourly case. .. That would be the exception that would not be the norm. … These government cases and federal law challenges, they can go on for years. Even large law firms couldn’t tie up their resources for years.”
The Frontier could not reach Rivkin for comment for this story.
Case summaries provided by AG’s Office:
- Teresa Collett was originally retained by Attorney General Pruitt’s predecessor Drew Edmondson to represent the state in an abortion case and completed her work briefly under Pruitt. She was paid $155,827.11 for her work
- Seby Larsen, LLP was retained for two cases involving the U.S. Fish and Wildlife Service and the EPA. The firm was paid $73,092.50.
- The Ashcroft Law Firm was retained in 2014 to assist with a review of the state’s execution processes and advise the Attorney General’s Office. The firm was paid $138,005.98.
- A former OAG employee filed a lawsuit against the agency. A firm has been paid $99,511 for its services. The case is ongoing.
- Modrall, Sperling, Roehl, Harris & Sisk was retained in 2012 to represent the state in litigation involving the Kialegee Tribe and the proposed construction of a gaming facility in Broken Arrow. The firm was paid $561,750.
- The Attorney General’s Office hired outside legal counsel for an ongoing water litigation various Oklahoma American-Indian tribes brought against the state. The Legislature appropriated funds specifically to cover the cost of this litigation, Ferguson said. Ferguson did not provide the amount that was appropriated.
- The firm McCallum, Methvin and Terrell was retained for two types of contingency-fee cases: Cases involving the recoupment of improper payments received by petroleum companies from the state’s Petroleum Storage Tank Indemnity Fund and a case involving price-fixing claims against various manufacturers of LCD panels.