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Ken Hare In Depth: Answers on ASU legal fees still leave public in dark

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MONTGOMERY, AL (WSFA) -

Efforts by the news media to let the public know the details of Alabama State University's spending on legal fees have produced some interesting results, including the disclosure that an attorney was being paid $375 per hour at taxpayer expense to represent university officials in an ongoing audit.

But those media efforts to get details have raised almost as many questions as they have answered -- especially questions about just what the university is paying $375 per hour to do.

Before we get into those questions, a little background on what has been learned so far.

Back in mid-May, I reported in a column that ASU had hired retired federal judge U.W. Clemon at $375 per hour to represent ASU staff members in an ongoing forensic audit of the university. That audit was called for by the governor, who is ex-officio president of the ASU board of trustees -- after claims by a former president that he was pushed out because he asked questions about finances and contracts.

Then in late May, I did a follow-up column and Raycom political reporter Max Reiss did a news story pointing out that the $375 per hour rate was in apparent conflict with an executive order by the governor to limit legal fees to no more than $195 per hour except in extraordinary circumstances that were preapproved by the governor. The governor's office said that no such preapproval was sought.

Reiss followed up those reports immediately by formally asking the ASU public relations office for public documents related to legal fees, as did the Montgomery Advertiser.  But instead of responding to those straightforward document requests, someone at ASU decided to refer them to the high-priced attorney in question, Clemon.

Which bring us to the results of those document requests. What clearly stands out most among the copies of bills that were provided are pages and pages of ... nothing.

Well, not exactly nothing. Actually there are pages and pages of black where all the details of billing were redacted for "attorney-client privilege."

The bills from Clemon's law firm -- provided by Clemon, remember, not ASU -- contained just a heading, several blacked-out pages, and nothing but a total for billing.

While attorney-client privilege might explain why details on who the attorney was talking with was redacted, it is a stretch to black out just how many hours were billed and what hours were covered by those bills.

But all the public gets are totals and the dates of the payments.

However, even without details the numbers are telling. Overall since November, ASU has paid more than $240,000 to outside attorneys. Of that, about $83,000 went to Clemon's firm. All of that appears to be for work performed prior to the May 10 meeting at which the ASU board of trustees reportedly approved the hiring of outside attorneys to advise ASU officials in the audit.

Which brings us to the questions the public should have that remain unanswered:

-- First and foremost, why is it necessary for ASU to use public money to pay an outside attorney to advise individual ASU officials in an audit?  Clearly, a forensic audit is more detailed than regular audits, but it is not a criminal investigation. That's especially true since the ASU officials promised to cooperate fully with the audit.

-- If legal questions do arise from the audit, why can't the university's staff attorneys handle any issues?

-- Who at ASU decided to refer questions about legal fees to an attorney being paid $375 per hour when they could be handled routinely?

Remember, the questions dealt with legal fees, not the forensic audit. Such public access issues at other public agencies are usually handled by public relations personnel, perhaps with input from staff attorneys at no additional expense to taxpayers. If staff attorneys do not have the expertise, advice is available to any public agency from the state attorney general's office, which does have the expertise. Again, such advice would be at no additional expense to taxpayers.

-- Why did the ASU president say he requested permission from the board of trustees on May 10 to hire outside attorneys when the ASU payment records make it clear that already had been done? Note that the request was made in a closed meeting from which the public and the news media were excluded.

-- Finally, is it proper for a public body such as ASU to refer questions about billings from an outside group to the outside group?

The public has a right to seek public documents regarding billing and payments from a public body so that it can act as a watchdog on such spending. When ASU delegates its responsibility to the outside group -- in this case, Clemon's firm -- it undermines that entire watchdog process.

It is the same as a citizen asking a public agency for billing records from a contractor and then having the agency say it is up to the contractor to decide what information will be given.

That's not the way it should work.

When Gov. Robert Bentley, who serves as president of the ASU trustees and who called for the forensic audit, was asked by a newspaper reporter if he believed Clemon was hired to frustrate the intent of the audit, he declined to respond. But he did say, "It may take us longer, but eventually we will get all that we need."

As governor and president of the ASU board, Bentley should insist that ASU officials provide answers to all of the above questions. And most importantly, he should make certain that the public has the answers as well.---

Ken Hare was a longtime Alabama newspaper editorial writer and editorial page editor who now writes a regular column for WSFA's web site. Email him at khare@wsfa.com.

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