The state land commissioner’s office paid more than $25,000 to a law firm to represent then-Land Commissioner Mark Wilcox against two lawsuits filed against him over personal use of state-owned vehicles, and Wilcox failed to submit claims for these payments to the state Claims Commission to determine whether he was entitled to these payments under state law, a state auditor said Thursday.
Auditors recommend that Land Commissioner John Thurston ask Attorney General Dustin McDaniel to determine whether Wilcoxwas entitled to these payments made on Wilcox’s behalf, said Deputy Legislative Auditor Jon Moore.
Moore said Wilcox was named as a defendant in two lawsuits filed in Pulaski County Circuit Court in 2010 about personal use of stateowned vehicles.
One suit filed by the state Republican Party challenging the legality of personal use of state vehicles by the state’s top elected officials was dropped in May of 2011, after GOP chairman Doyle Webb of Benton said laws enacted in 2011 appeared to make the litigation unnecessary.
The other suit was filed by attorney Gene Sayre of Little Rock, who objected to state employees using state-owned cars for personal trips. A Pulaski County circuit judge tossed it out in June 2011 after ruling that the plaintiffs failed to show any proof of wrongdoing by the defendants. The suits came after the Arkansas Democrat-Gazette wrote a series of articles about management of the state’s 8,000-plus vehicle fleet.
Moore told a legislative committee Thursday that Wilcox spent the money after the attorney general’s office declined to provide him with free legal representation. Officials in the attorney general’s office said that the Arkansas Rules of Professional Conduct would not allow them to provide Wilcox with legal services. They recommended Wilcox find other legal representation.
The land commissioner’s office subsequently paid the Little Rock law firm of Watts, Donovan & Tilley, P.A. Little Rock, a $15,000 retainer and $10,463 in legal fees prior to the end of Wilcox’s term at the end of 2010, Moore said. Ultimately, the firm refunded $9,630 to the land commissioner’s office, leaving the total legal expense at $15,833, he said.
Under state law, a state official, who is sued based on his act or omission while acting within the course and scope of his office and in performance of his official duties, is entitled to payment from the state for his reasonable attorney fees and court costs if the attorney general declines to represent him and the official acted without malice and in good faith, according to Moore.
The law stipulates that the claim for payment shall be filed with the state Claims Commission and governed by laws pertaining to proceedings before the commission, he said.
Cory Cox, an attorney for the land commissioner’s office, said the office asked McDaniel’s office to represent it in these matters, after Thurston replaced Wilcox as land commissioner in January 2011, and then it terminated the law firm.
After Thursday’s meeting, Wilcox said in a telephone interview that he didn’t know that state law required him to file a claim with the state Claims Commission for payment of these legal expenses.
“We were not aware of that. No one ever told us,”said Wilcox, a Wooster cattle farmer.
During the legislative committee meeting, state Sen. Jeremy Hutchinson, RLittle Rock, said it seems like Wilcox should reimburse the land commissioner’s office for these legal expenses totaling $15,833 and seek reimbursement for his personal legal expenses through the Claims Commission.
Hutchinson, an attorney, asked Cox whether the land commissioner’s office has asked the attorney general’s office for an opinion on the matter.
Cox said the land commissioner’s office hasn’t requested such an opinion.
He noted that the land commissioner’s office brought these payments of these legal expenses for Wilcox to an auditor’s attention after Thurston assumed office.
“We were looking for guidance,” Cox said. “I think there is a statute that allows the attorney general to go collect moneys owed. If this committee tells us to do that, we certainly don’t disagree.”
After the committee’s meeting, Wilcox said that he shouldn’t have to reimburse the state for these legal expenses because he was sued in his capacity as the state’s land commissioner and “Dustin should have represented me.”
Northwest Arkansas, Pages 9 on 12/14/2012