GOP lawmakers hire lawyer to sign secrecy pledge to end standoff with attorney general

MADISON - Republican leaders of the Legislature's finance committee hired an attorney at taxpayer expense Thursday to sign a secrecy agreement in an effort to end a standoff with Attorney General Josh Kaul.

But it's unclear whether the move will resolve the dispute triggered by new laws requiring the Democratic attorney general to get legislators' permission to settle lawsuits. 

The lawmakers this week refused to sign such agreements requested by Kaul, who said he needed assurances of confidentiality to avoid consequences for taxpayers as he seeks to resolve litigation involving the state. 

But a legal analysis by the head of the Legislature's research bureau suggested only a new law could require lawmakers to keep such information private. And the nondisclosure agreement proposed by the GOP leaders wouldn't apply to any of the committee's members anyway because none of them signed it individually.  

And just after GOP lawmakers provided Kaul with their proposed confidentiality pact, Kaul told them the tight timeline he and lawmakers were under was no longer in effect.

The episode is the latest in a saga of confusion for lawmakers as they try to navigate new laws that give the Legislature more power over litigation handled by Kaul. 

Lawmakers and Kaul can't agree on how to share sensitive legal information, and more than a dozen lawsuits involving millions of dollars languish as the dispute continues. 

Kaul didn't embrace the proposal from Sen. Alberta Darling of River Hills and Rep. John Nygren of Marinette to advance one case. But he also didn't shoot it down, saying only that he was "assessing" the idea. 

Democrats on the committee were more blunt about their views on hiring an attorney for the committee. 

"They can't do that," said Democratic Sen. Jon Erpenbach of West Point. "This attorney they've hired does not represent the views of us."

Erpenbach and other Democrats on the committee didn't know Darling and Nygren had hired the attorney until they put out a public statement about doing so. They said they were baffled by the notion that an attorney they didn't know they had could contend he had the power to limit what they could tell the public. 

"I don't think that they have the authority to bind me to an agreement," said Democratic Rep. Evan Goyke of Milwaukee. "I don't believe the attorney that's been appointed represents me."

But Goyke and Erpenbach also said they would be reluctant to share information about cases that Kaul wants to keep private. Erpenbach said he likely would skip a meeting where confidential information is discussed. 

Darling and Nygren signed a contract with Andrew Phillips of the Milwaukee law firm von Briesen that says the nondisclosure agreement binds the committee and its members, even though Phillips is the only person who signed it. 

"This is the first I'm hearing about it," Goyke said. "If my lawyer signs something that binds me to some sort of confidentiality — my lawyer failed to communicate it to me and learning about it from a reporter is a potential problem for me."

The Democrats got a boost from Rick Champagne, the director of the nonpartisan Legislative Reference Bureau, who wrote in a memo that a confidentiality agreement signed by an attorney did not apply to individual lawmakers.

"I cannot find any authority that would require a member of the Legislature who serves on a committee to keep confidential any information delivered in closed session unless the information was required by state or federal law to be kept confidential or was information that the member had agreed to keep confidential under a confidentiality agreement signed by the member," Champagne wrote.

In a statement, Kaul said he was reviewing Darling and Nygren's plan after trying to work out an agreement with them for months on how to handle court settlements under a lame-duck law that limits his powers.

"Our interest remains in ensuring that Wisconsinites are represented as effectively as possible and that the enforcement of our environmental, consumer protection and other laws is not impeded by partisan gamesmanship," Kaul said in his statement.

In recent days, Kaul urged lawmakers to sign nondisclosure agreements quickly because he said they were needed in a legal matter that had a Friday deadline. But late Thursday his aides backed off that claim, saying the deadline had been lifted for reasons they could not discuss. 

Republicans were skeptical of the timing. 

"It seems that when the finance committee met AG Kaul's request to sign a confidentiality agreement the urgent deadline resolved itself," Nygren said in a statement.

The fight over legal settlements stems from lame-duck laws Republican lawmakers approved in December, just before Kaul and Democratic Gov. Tony Evers were sworn in. The measures chipped away at Kaul's and Evers' power, including by giving lawmakers a say in how some cases are settled.

Legislative leaders this month sued Kaul over how he is handling settlements, arguing he should be consulting with them in more cases. Two other lawsuits over the lame-duck laws are pending.

The decision to hire Phillips was made by Darling and Nygren alone. The rest of the committee members didn't vote on the matter. 

He will be paid $290 an hour, according to his contract with the committee. That's well below the $500 an hour that other attorneys recently hired by Republican lawmakers are being paid. Phillips specializes in assisting governmental entities, according to the bio on his firm's website. 

Darling and Nygren said in a statement the action should meet Kaul's confidentiality needs and requested information related to a settlement he had asked lawmakers to take action on this week.

"The Attorney General's demand is contrary to his prior practice — including when discussing settlements with the governor — and is an obvious effort to undermine the law by delaying the committee's work," Darling and Nygren said in their statement.

The nondisclosure agreement signed by Phillips says it requires the lawmakers on the committee to keep private any communications about the litigation before them and any related information or documents they receive.

In a letter from Darling and Nygren to Kaul dated Thursday, the GOP leaders said they provided the signed agreement despite their opposition because they did not want to “facilitate your efforts to undermine the statutory process” laid out within the laws passed in December giving the committee authority to approve settlements.

The action comes a day after the Milwaukee Journal Sentinel first reported more than a dozen lawsuits involving state taxpayers are languishing because the Wisconsin politicians can't agree on how to resolve them under the new Republican law that curbs the power of the Democratic attorney general.

The impasse comes as billions of dollars are on the table for states — including Wisconsin — suing over the opioid crisis.

A proposed deal to settle more than 2,000 lawsuits against OxyContin-maker Purdue Pharma over the company's role in the nation's opioid crisis was pushed back Thursday just as Kaul told lawmakers the tight timeline to resolve the latest dispute was no longer in place. 

Purdue Pharma is facing pushback from some attorneys general who say the proposed settlement of up to $12 billion isn't enough, according to the Wall Street Journal.

You can find out who your legislators are and how to contact them here.

Contact Molly Beck at molly.beck@jrn.com. Follow her on Twitter at @MollyBeck.

Contact Patrick Marley at patrick.marley@jrn.com. Follow him on Twitter at @patrickdmarley.