Lawsuit payouts: measuring our next attorney general
While I’m not a lawyer and have little interest in the methodological details of legal theory and practice, I do sit on the House Ways & Means Committee and find myself incredibly interested in the public policy issues underlying our state budget. It is impossible to look at a draft operational budget and casually sweep past a small line item that ranges anywhere from $75 million to $150 million per biennium: indemnity payouts for legal liabilities the state has incurred.
In the past six years alone, the state has paid out $300 million and we are on track to shatter those numbers.
I have blogged about this issue numerous times including here and here. Not surprisingly my previous posts even read similarly to this one, but I find a need to raise the issue forcefully once again as we seriously explore issues surrounding the new 2013-2015 budget.
My frustration with our liability payouts and the accompanying legal bill is not merely the amount, but our lack of a serious policy and political effort at reforming our state’s approach. It is not, as some claim, merely a matter of eliminating the state’s waiver of sovereign immunity which would be an extreme position. The state must be liable for wrongs committed under its eye and on its watch (such as foster youth abused while under the state’s care)–with gross negligence, malice or willful neglect–against individuals. And it is not, as others claim, merely a matter of stronger risk mitigation policies and programs. It is inherently a matter of both issues: our laws and the management and implementation of those laws.
And this is why we face such a crisis.
With each year the amount of tax dollars paid out in claims grows and the finger pointing continues. The AG is our state’s top lawyer and therefore the chief risk mitigation officer, in my view. Our state splits the authority between the AG and the Governor, so it’s easy for an AG and governor to a blame the other or the Legislature. I don’t know which model is right, but without clear authority one way or the other, there is no accountability at all.
The issue is too easy to ignore since it seems to become an accepted ‘cost of doing business.’ But I reject that idea and I am resentful of the line item in the draft budget that is simply accepted without question. Each year the amount of payouts has grown and without a change in policy and a new initiative to prioritize risk mitigation we will continue to lead the nation in indemnity payouts.
I find it distressing that the entire issue of indemnity payouts–arguably the most important, simple, understandable and clear measure of the performance of an AG–is barely mentioned on the websites of both candidates for AG. Mario Cuomo reminds us that we “campaign in poetry and governs in prose” but surely our candidates will acknowledge some responsibility to educate the public about the reality of the job they seek.
Managing this public policy issue is the sort of tactical, day-to-day, politically unsexy work that our next AG and the Legislature must address.
In this case, I would argue that the general media has so far in the AG campaign failed miserably to identify, raise and openly discuss what is arguably the single most important and understandable measure of the performance of an attorney general.
From what I can tell Bob Ferguson (whom I have endorsed) fails the mention the issue at all on his website. Reagan Dunn dedicates all of one sentence to one of the most serious public policy challenges facing the new AG: “As a former private practice attorney who has advised both private companies and local governments about proper risk management, Reagan will work to reduce millions of dollars wasted in settlement payouts by keeping state agencies from being sued in the first place.”
No policy proposals, links to white papers, arguments or specific ideas for how they propose to tackle what is widely considered the single most important–or at least measurable–challenge one of them will face as attorney general of the state of Washington.
Of course, I suspect there is more to the two candidates’ public policy proposals, ideas and plans than is listed on their websites. But I guess you have to be a lawyer to find it in the fine print.
This biennium our state’s payouts for lawsuits will approach $150 million, a number believed to be among the highest of the 50 states in the nation. The public deserves a more open, transparent and public dialogue about this issue.
I am committed to the difficult work ahead not with one answer in mind, but with a willingness to help find a path together.
Your partner in service,