Judge considers motion to disqualify Labrador from suing State Board of Ed over alleged open meeting

An Ada County judge is considering a motion in the Attorney General Raul Labrador's lawsuit against the Idaho State Board of Education. At issue in the case are the closed door meetings on the University of Idaho's deal to buy the University of Phoenix. Labrador claims the State Board of Education's meetings violate Idaho's open meetings law.

Thursday's hearing centered on the question of whether Labrador should be disqualified from the lawsuit.

Labrador’s duties include representing and providing legal advice to state agencies, such as the State Board of Education.

The State Board of Education serves as the Board of Regents for the University of Idaho, which in May gave the greenlight to approve the University of Phoenix deal.

The attorney hired by the State Board after the lawsuit was filed, Trudy Hanson Fouser, points out the State Board was assigned a deputy attorney general, Jenifer Marcus, who serves under Labrador. Fouser said Marcus told the State Board that the closed door meetings were legal. Fouser said the State Board relied on that legal counsel. She said Marcus was at all three of those executive sessions and never raised any objections to them.

In a June 20 phone call, hours before Labrador files the suit, Fouser said Labrador asked Matt Freeman, the Executive Director of the State Board, probing questions about the negotiations. Freeman said in a statement to the court last week that he shared information with Labrador "openly and candidly" since Labrador's office was representing the Board of Regents.

According to Freeman's statement, Labrador did not tell him until the end of the conversation that he would file a complaint alleging the meetings violated Idaho's open meetings law.

Fouser said in a filing last week that the “the Idaho Attorney General’s Office has a history of suing its own clients based on advice that it gave its own clients.”

Fouser argued the State Board deserves to have an independent prosecutor on this case -- someone who was not given confidential information by the defendants. She’s asking for Labrador to hire an outside special counsel who is "walled off" from any confidential information his office has learned. She said the State Board is just asking for a level playing field.

Deputy Attorney General Timothy Longfield argued Thursday that Labrador did not bring the case forward because of what he learned in the phone call, and that regardless, pursuing the case is part of Labrador's statutory duty -- to enforce Idaho's open meetings law. He also argued the Attorney General can sue a state agency if that agency has independent counsel, which the State Board now has. He said that should be remedy enough.

Judge Jason Scott said he did have concerns with the phone call between Labrador and Freeman, and said Marcus was "hopelessly conflicted at this point," and she "can't functionally and effectively represent the Board at that point because she's got split loyalties between her boss, her employer, and her client."

Scott said he will likely make a ruling on the motion within the next week.

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