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Ybarra's legal fees could cost taxpayers $200,000

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Posted at 12:19 PM, May 13, 2020
and last updated 2020-05-13 14:19:17-04

BOISE, Idaho — This article was originally written by Kevin Richert with Idaho Education News.

A Boise lawyer could receive up to $200,000 of taxpayer money representing state superintendent Sherri Ybarra.

For David Leroy, the former attorney general and lieutenant governor, the work could be worth $400 an hour, far exceeding a deputy attorney general’s hourly pay for arguing the other side of the case.

On March 31, Ybarra hired Leroy to represent her in a lawsuit against the State Board of Education and Legislature. Idaho Education News received a copy of their contract through a public records request.

The contract attaches a potential but partial dollar figure to a high-profile — and taxpayer-funded — Statehouse power struggle.

During the 2020 legislative session, lawmakers stripped 18 full-time IT and data management jobs from Ybarra’s State Department of Education, voting to transfer them to the State Board. In the process, the Legislature shifted $2.7 million from SDE to the State Board, effective July 1. Ybarra said she was blindsided by the move.

After Ybarra failed to convince the State Board to override the Legislature’s wishes and keep the positions and the money under her purview, Leroy filed a lawsuit on April 24. In the lawsuit, Leroy says the Legislature and State Board usurped Ybarra’s constitutional authority — and says lawmakers were retaliating against her for failing to support a 2019 bill to rewrite Idaho’s school funding formula.

Under his contract, Leroy has been hired as a special deputy attorney general. The contract says Leroy “shall be paid for actual hours worked not to exceed $200,000.” Leroy can bill the state $400 an hour for his work, while an office paralegal can bill at $150 per hour.

In an April 2 letter to Ybarra, Leroy indicates that the superintendent had no choice but to hire outside counsel. He says that Attorney General Lawrence Wasden’s office declined to take on Ybarra’s case, due to what Leroy called “internal state agency conflicts.”

Wasden’s office declined comment on Leroy’s letter. Wasden is representing the State Board in the lawsuit, but Wasden is not representing the Legislature, spokesman Scott Graf said. It’s unclear whether the Legislature has hired legal counsel.

Ybarra did not respond to a request for comment Wednesday morning. But in an email Wednesday morning, Leroy noted that the Idaho Supreme Court has agreed to expedite the case, with oral arguments scheduled for June 5. As a result, the case will be “swiftly (and) economically decided,” he said.

“If Superintendent Ybarra should not prevail, the people will no longer have a direct, elected voice in the education of Idaho’s children,” Leroy said. “That the Supreme Court took the very rare step of hearing this case directly, on an emergency basis, in the throes of a pandemic closure, underscores that the constitutional dimension here is about more than legal fees.”

Still, the legal fees are significant. The $200,000 maximum exceeds the annual salary for Wasden ($134,000), Ybarra ($117,556) or any staffer in Wasden’s office, the SDE or the State Board.

And the legal struggle comes as a coronavirus-driven economic downturn is eating into state tax dollars available for public schools. Gov. Brad Little in March ordered a $19 million cut in K-12 for the budget year ending June 30. Last week, he laid out a blueprint to cut an additional $99 million from public schools, as early as July 1.

On Wednesday, Leroy described the lawsuit as Ybarra’s last resort.

“Sherri is a reluctant, but committed champion for the constitutional cause of Idaho public school children and parents,” he said.