The costs

Iowa State has paid $120,325 to a private law firm to provide legal assistance on three Title IX cases, $22,624 of which may have been spent without proper legal authorization.

The money was paid to Husch Blackwell, a corporate law firm from Kansas City, Missouri, to defend Iowa State in three Title IX cases that pertained to sexual misconduct, and, in one case, racial discrimination.

The funds, billed from June 2017 through Jan. 18, 2018, came out of the general university budget, Iowa State Chief Counsel Michael Norton said. In fiscal year 2016, which is the most recent final university budget, 58.9 percent of that fund was from student tuition.

The total spent on each lawsuit will increase, Norton said, because two of the three cases are ongoing. Niesen v. ISU and Kelley v. ISU are still in the pre-trial stage, and Maher v. ISU had not been dismissed when the Iowa State Daily submitted its request for records.

Former student Melissa Maher’s case against Iowa State was dismissed Tuesday by Chief U.S. Magistrate Judge Helen Adams, who granted Iowa State’s motion for summary judgment. As of Jan. 18, the university had paid Husch Blackwell $71,566.34 on that case. While the totals may have increased in each case since Jan. 18, Maher’s case was the most costly when the Iowa State Daily submitted its request for records.

The second most costly case at the time the records request was submitted was former student Taylor Niesen v. ISU at $25,495, according to invoices.

Iowa State paid the law firm $23,263 for the third case, Robinette Kelley v. ISU, according to invoices. Kelley is the former equal opportunity director and Title IX director at Iowa State. Kelley alleges she was unable to perform her job and was subject to discrimination as a woman of color.

Contract Confusion

State entities such as Iowa State are not allowed to hire and pay private attorneys for legal assistance in pending litigation without authorization from the executive council, which is composed of the Iowa governor, secretary of state, treasurer, secretary of agriculture and state auditor.

The attorney general is required to provide a written justification to the executive council as to why attorneys with the state entity are unable to perform the service, according to Iowa Code 13.7. The executive council then approves or denies the request based on the information provided.

The executive council approved the university’s use of Husch Blackwell for “advice and representation, with respect to Title IX litigation and compliance manners” on Sept. 11, 2017.

Invoices show, however, that Husch Blackwell began billing Iowa State for “professional services” in the Niesen v. ISU case on June 2, 2017, before that approval. Invoices show $13,673 accrued in the Niesen case between June 2 and Sept. 11.

Husch Blackwell began billing Iowa State in the Maher v. ISU case on Sept. 1, 2017, 10 days before approval came from the executive council for Husch Blackwell to provide legal assistance related to Title IX litigation. In the Maher v. ISU case, charges of $8,951 were incurred before Sept. 11, 2017.

In total, Husch Blackwell billed Iowa State between June 2 and Sept. 11 for $22,624, according to invoices from Husch Blackwell.

Norton said that any amounts billed by Husch Blackwell before the Sept. 11 approval by the executive council would have been covered by a contract with Husch Blackwell entered into on Dec. 15, 2016. That agreement was to provide Title IX training and Fair Labor Standards Act (FLSA) training to staff, Norton said.

“We are being retained to present FLSA Training, Title IX Training and to assist with contracts,” the December 2016 document from Husch Blackwell reads. “In the event that we are asked to provide additional services, we will confirm such engagement in writing.”

Norton said a written engagement was not needed for consultation because it was covered by the December 2016 agreement for training. This agreement did not require approval from the executive council because it was not technically a legal service, Norton said.

“So the initial work they did for us was just consulting work, which related back to that original contract, for which we didn’t need DOJ approval on, and so they weren’t actually representing us in litigation at that time,” Norton said. “They were just consulting with us on Title IX issues, which included some of the issues underlying the Niesen case.”

“We only need approval if they’re representing us in litigation,” Norton said. “They were not representing us in the litigation at that time. They were just providing consulting services on Title IX issues like the training, like other issues related to how we handle our Title IX obligations.”

Norton said it was later decided that Iowa State needed help in representation in litigation, and this is when they followed the process with the executive council.

The $13,673 billed to Iowa State from Husch Blackwell for the Niesen v. ISU case before Sept. 11 also stemmed from advice on general Title IX compliance consultation, Norton said.

“I don’t dictate how they designate what [Husch Blackwell is] going to put on the bill in terms of how they determine their matter, but the questions that we had of them were far broader than just the Niesen case,” Norton said.

Redactions in the documents do not allow the Iowa State Daily to confirm this, but an invoice was sent to Iowa State in the amount of $305 on Sept. 18 pertaining to “Title IX Litigation Advising” rendered on Aug. 29 that was billed separately from an invoice sent on the same date for $244 in the Niesen v. ISU case.

Asked if advice and consultation on a legal matter is believed to require approval from the executive council, Eric Tabor, deputy chief in the Iowa Attorney General’s office, said he believes they do, as the law states “compensation shall not be allowed to any person for services as an attorney or counselor.”

“I think advice yeah, because sometimes we don’t have the expertise in our office on certain matters but this [Sept. 11 agreement] is … both, including advice and representation,” Tabor said. “This is a Title IX matter that we requested a special counsel because we needed a little more expertise than our office had in its advice and representation.”

Tabor declined to comment on whether Iowa State had violated the law by obtaining advice on litigation matters beginning in June 2017 and predating the Sept. 11 agreement.

Frank LoMonte, director of the Brechner Center for Freedom of Information and former executive director of the Student Press Law Center, said the law indicates Iowa State may have made a misstep in obtaining specific services from Husch Blackwell before the Sept. 11 agreement from the executive council.

“Normally, if you’re just hiring somebody to put on a training, or workshop, or teach a course, none of those things is the provision of legal services and you can freely do that,” LoMonte said. “But under Iowa law, it certainly looks like once you are consulting that attorney for help on a specific matter, you are now receiving legal services, and at the point that you’re receiving legal services, then you need sign-off from the state before you can begin that engagement and start paying the lawyer.”

LoMonte said that many states have laws dictating when a governmental body is required to receive approval for legal assistance from a private law firm.

LoMonte said he has a hard time seeing the attorney general defining the law differently, referring to the definition of legal assistance as including consultation as “the most common sense” way to define it.

Steve Renau, communications manager at Husch Blackwell would not comment on their billing practices, saying they had not been authorized to speak on the matter and referred the Daily back to their client, the general counsel office at Iowa State.

Norton was asked if Husch Blackwell was advising specifically on Maher v. ISU and Niesen v. ISU, as invoices indicate.

“Yes and no. I mean it was broad advice about Title IX issues, research about Title IX issues and how we might approach responding in litigation … to those cases and other complaints or cases that we had,” Norton said.

Norton clarified that “other cases or complaints” were a reference to policy considerations.

“In light of the complaints that were being made, and other issues around campus and Title IX issues, we asked for general advice about Title IX, Title IX compliance and Title IX issues,” Norton said. “The issues that they were consulting with us at, certainly were present in Niesen and Maher, absolutely, but it wasn’t directed at specifically representation of the university in those cases. The issues were presented — some of the issues were presented by those cases.”

After Norton was interviewed by the Iowa State Daily, he sent a statement about Iowa Code Section 13.7:

“Iowa Code Section 13.7 (“Special Counsel”) is limited in its application to the hiring of outside counsel to “represent” the Board of Regents (and the individual Regent institutions) “in pending actions or proceedings.” Section 13.7 does not apply to attorney or counselor services that do not involve representing the Board/institutions in a pending action or proceeding,

The services of Husch Blackwell are consistent within these provisions. Husch Blackwell was first hired through Office of University Counsel and general university procurement policies to provide legal consulting services on a variety of issues including some employee benefit issues and training, policy development, and general Title IX legal advice. The Title IX consulting was related to, but broader than, the issues raised in both the Maher lawsuit and the Niesen lawsuit. At that time Husch Blackwell was not representing the university in either of those cases and was not representing the university in any pending action or proceeding.

In June 2017, based on discussions with the Attorney General’s office and Interim President (Ben) Allen, it was determined that outside counsel would be hired to represent the university, along with the Attorney General’s office, in Title IX litigation. Pursuant to university procurement policy a request for proposal was issued outlining the university’s need and the selection criteria for selecting counsel. Four firms submitted responses to the request. A panel of administrators was selected to review the candidates. This panel also included a representative from the Attorney General’s office. Two firms were brought to campus for interviews and Husch Blackwell was ultimately selected by the panel to work with the Attorney General’s office to represent the university in Title IX litigation, including the Niesen and Maher Matters. At that point, executive counsel approval was obtained and Husch Blackwell began representing the university in Title IX actions and proceedings, including Niesen and Maher.”

LoMonte said the university is either redacting information that is not protected by attorney-client privilege or Husch Blackwell was in fact consulting on specific litigation, in which case LoMonte believes the law indicates that Iowa State should have received prior approval from the executive council.

“The starting point for attorney-client privilege is that the privilege applies only when you’re contacting an attorney to receive legal advice in connection with an ongoing or anticipated legal matter,” LoMonte said. “So there has to be a specific legal matter like a lawsuit that you’re either in the midst of or you’re anticipating and preparing for. At that point, that’s when the privilege attaches to your communications.”

Jeffrey Thompson, Iowa solicitor general, who submitted the request for special counsel to the executive council of Iowa, could not be reached for comment.

The Iowa State Daily paid $30 to obtain the records related to Husch Blackwell for this story.