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Home / Washington Business - Spring 2003 / Questions & Answers with the Attorney General -- Part 1 |
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Questions & Answers with the Attorney General -- Part 1 |
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Written On: Spring 2003 |
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Editor’s Note: We asked our state’s Attorney General Christine Gregoire for her views on 14 questions dealing with state and federal legal issues. Rather than edit her responses, we will run the full text in the next two issues of Washington Business Magazine. The full text will be posted on our website (www.awb.org) after the July issue is published. Part I deals with mainly issues which pertain directly to our state and the legislature.
Q: In this budget there is roughly $100 million set aside to pay tort claims in the state. How can the state begin to control those costs?
A: The most important thing we can do is stop the tragedies that result in tort lawsuits from happening in the first place. State government is tasked with high-risk assignments—such as supervising parolees or protecting abused and neglected children—but it can and must do more to eliminate situations that result in terrible tragedies and tort lawsuits. Governor Locke and I formed a task force that produced successful legislation and administrative actions calling for state government to better manage risk, avoid harm to our citizens, and reduce tort payments.
Secondly, we must provide aggressive, professional tort defense for the state and its taxpayers. In recent years, at our request, the Legislature has provided my office money to raise attorney salaries, increase staff and invest in technology, and it has paid off. On average we handle about 300 cases per year. Of those last year, about 51percent were resolved with zero payout, 46 percent were settled, and 4 percent went to trial. We reduced the payouts last year by $48 million from the high of $80 million in 2001 to $32 million in 2002.
Q: Last session, the Governor and Legislature secured a portion of the Tobacco Settlement money? You opposed that proposal. Would you do the same this year if the legislature proposes to secure the rest of the settlement money? Why isn’t that a good idea? Where does the money go?
A: I absolutely will oppose any attempt to further securitize tobacco settlement money. Until last session, all the tobacco money was used for public health and tobacco prevention and control. I don’t think it is wise to commit future revenue streams to pay off current debt. Last year we committed nearly 30 percent of the future tobacco revenue for 30 years in order to get $450 million to balance the budget. Under the most optimistic scenario, the cost for the $450 million will be nearly $900 million (if paid off in 17 years), and it is possible this one-time budget bail-out could drain more than $1.5 billion (if paid off over the 30-year life of the bonds) from future budgets.
This year the Legislature faces a $2.4 billion deficit and because of securitization last year, we have about $30 million less tobacco revenue to offset public health costs. We need balanced, sustainable budgets, not gimmicks and one-time money grabs that sell our future and put our bond rating at risk.
But beyond the dollars and cents issues, I think securitization further frustrates the public. I believe people think the tobacco money really was for public health and tobacco control, and when they see it diverted to other purposes, it only increases their frustration over government spending.
Q: You were instrumental in pulling the business and environmental communities together to resolve the Shorelines Rules litigation. Are there other opportunities to mediate environmental disputes? If there are, what are they and how do we start?
A: There are endless opportunities to mediate environmental disputes, particularly if all of the parties are willing to work hard and talk straight, as occurred in the shoreline guidelines discussions. When we convened all the parties for the shorelines talks, I found it remarkable how the very diverse interests were able to agree on common goals. That provided the foundation for the talks to move forward successfully.
Few environmental disputes facing state government are as long-standing, as seemingly intractable, and involve as many different interest groups and levels of government as the fight over shorelines guidelines. I cannot, however, think of a dispute involving business, the environmental community, and state and local government that could not be at least narrowed, if not resolved, if the parties committed the time and energy to a principles-based discussion.
Another example of on-going mediation that is headed in the right direction involves water rights in the Yakima River basin. We have been relatively successful in the past two years resolving a number of the major claims in the Aquavella Adjudication by using mediation.
Mediation can provide a forum for getting past embedded misperceptions to a discussion of real solutions that cut through the rhetoric. In that regard, other areas of environmental disputes that may benefit from an investment in mediation may involve permitting, water quality and water quantity related issues.
The shorelines agreement should stand as a reminder to all of us that we can solve our problems without divisive, costly, and time-consuming litigation. From my vantage point as Attorney General, I see too many cases where parties litigate instead of communicate. And it doesn’t just involve environmental issues.
Q: Unions have a good track record of winning at the Supreme Court level on some key cases. For example, the Supreme Court ruled that benefits must also be calculated as part of the time-loss payments for workers’ compensation. With our workers’ comp costs going up an average of 29 percent this year, the Department of Labor & Industries has proposed legislation to change some of those rulings. One such ruling is the Cockle decision that I described above. Do you see the courts over-reaching and legislating particularly in the area of labor relations? Do you see a trend by unions to circumvent the legislative process and go directly to court? If that is the trend, what will drive the unions and employers back to the table to settle their disputes outside of court?
A: Sometimes going to court is the only way to address issues for the parties whether it’s a constitutional or a statutory interpretation question. However, the court process can be costly, slow, tends to foster antagonism, may raise as many questions as it resolves, and is not necessarily predictable. In Cockle, the Court held that the value of health benefits should be included as part of the wage computation in determining time-loss for purposes of workers’ compensation. It left open the question of whether other benefits should be included, and our office is currently litigating many, many cases involving these issues. The litigation in the wake of Cockle could go on for years. Employers and workers—not to mention the Department of Labor and Industries—are left in limbo while these cases wend their way through the judicial process.
Both sides would be far better served, in my view, by having the real experts—the employers, workers and L&I— work toward mutually agreeable solutions.
Q: Employers are trying to limit their exposure on reference checks. Many employers today will simply not give reference checks. What can be done to limit the exposure of employers to lawsuits if they give an honest reference? What can be done to limit the employee's exposure to "blacklisting?"
A: The Legislature has looked at this issue numerous times. In 1998, the Legislature passed Senate Bill 6699 which provided that a current or former employer is presumed to be acting in good faith when providing information about a current or former employee to a prospective employer. It also said the employer is immune from liability if the disclosure relates to the employee's ability to perform his or her job; the diligence, skill or reliability with which the employee carried out the duties of his or her job; or any illegal or wrongful act committed by the employee.
As I understand it, the Governor vetoed the bill due to concerns that the language was too broad and would deprive employees of a remedy for blacklisting. Nonetheless, there is a common-law qualified privilege that allows an employer to disclose information about a current or former employee to a prospective employee as long as the employer is not acting out of malice toward the employee. This common-law privilege should protect references made in good faith while still providing redress for malicious, discriminatory or illegal references. That should be the standard of any legislation in this area.
Managers in our office have gone through the same concerns regarding reference checks. Our practice is based on that common-law qualified privilege. We cooperate with reference checks, but we have to be smart and careful about them and make sure we stick to documented points of fact. We think that is fair to other employers and the employees, and it
limits our exposure.
Q: From your days as director of the Department of Ecology, do you have recommendations on how to streamline the permitting process? How can Ecology become more user friendly?
A: First is the process inside the agency. How do we make sure Ecology has the information necessary to make decisions? This can be the cause of costly and frustrating delays. Then how do we hold the agency accountable to process that information and make decisions in a timely manner? I used to tell staff that the worst thing we can do is make no decision. An untimely decision can be as bad as no decision. When it comes to process, people have a right to expect both the simple things, like having phone calls promptly returned, to more substantive issues like clarity regarding information needed for permitting and clear decision criteria.
One area in the permitting area that could use further discussion involves the process that follows the agency's decision. There have been a number of bills introduced this session that would change the process for appealing Department of Ecology decisions, which currently starts with the Environmental Hearings Office and then proceeds through our state courts. I am currently leading a task force that has been asked by the Legislature to examine new and more effective ways to resolve disputes in the arena of water rights allocation. In a similar vein, I think there is room for a parallel effort involving appeals of Department of Ecology permits generally. Rather than having rifle-shot legislation, which solves one problem and may create 10 new ones, I think we should develop a comprehensive set of recommendations for improving the process of resolving permitting disputes.
Q: As state and local governments deal with revenue shortages and the budget crisis, in your judgement can they provide adequate police and fire protection? Should the federal government step in and help the states in the name of Homeland Security?
A: As you probably know, criminal justice costs continue to take a growing share of city, county and state budgets. I talk constantly with prosecutors and law enforcement from around the state and I know they are feeling incredible pressure to provide adequate police and fire protection within their budgets. As hard as the budget problems have been, I think one good thing has been the pressure to really look at what we are doing, how we are doing our work, and whether we really need to continue doing that work. In the area of criminal justice, it is time for us to do something government traditionally hasn’t done well, and that is focus on prevention. For example, we are currently working with local law enforcement to prevent predatory acts against our children using the Internet.
As far as Homeland Security funding, yes, the federal government should provide money to state and local law enforcement. There is absolutely no way these agencies can help in the war on terrorism without financial assistance.
The war on terrorism must be a partnership between the federal, state and local governments. The federal government cannot wage this war alone. Just in sheer numbers, local law enforcement adds thousands of officers to the fight and they are the people who are on the street and closest to the action. Both U.S. Attorneys and the Agent in Charge for the FBI in Washington have been tremendously responsive to my requests to involve state and local law enforcement in terrorism planning efforts.
Q: In Oregon, the day after Measure 28 failed, more than 100 prisoners in the Portland jails were released. As state and local governments deal with revenue and the budget crisis, do states need to review sentencing guidelines and the "three strikes and you’re out" law? Are there people who are currently in jail who should not be? If yes, how should we deal with them?
A: Over the years a variety of new sentencing provisions have been adopted in Washington. All were implemented for public protection. Most of the new provisions were passed during strong economic times so the costs were not as great a concern. I think the budget climate requires us to take a new look at sentencing for non-violent offenses.
Obviously we have to weigh the true costs of long-term incarceration and the risk an offender presents to the community. We should acknowledge what other budget items may go unfunded because of the incarceration costs and be open and direct about the type and amount of supervision the offender will get in the community if they are released.
We also should look for other ways to hold non-violent offenders accountable other than costly incarceration. By locking them up, we may just victimize the public twice—once when the crime occurs and again when we have to pay the bill for their prison time.
Q: Are there issues on which you would like to comment?
A: I’d like to point out that your questions have made me realize that too often today, the parties keep arguing, fighting and litigating without ever coming to any real solutions. We need to use the shorelines issue as a model. It showed us once again that we can take tough, divisive issues, work hard, find common ground, and develop meaningful solutions. The issues you have asked about—tort reform, environmental permitting, labor management relations—all are important issues that have been simmering too long. We need to put the conflict behind us, agree that one side can’t dictate workable solutions, and get to work on real solutions. Shorelines proved we can do it, now we need to cooperate and communicate and not just litigate.
Christine Gregoire is Washington’s 16th State Attorney General and the first women elected to the position in state history. She is serving her third term. Gregoire graduated from the University of Washington in 1969 with a teaching certificate. In 1977, she received a law degree from Gonzaga University. Gregoire began her legal career in the AG’s Spokane Office in 1976 as a law clerk. Gregoire became the first woman to be appointed Deputy Attorney General proior to being appointed Director of the Dept. of Ecology by Gov. Garner.
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