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Outside counsel fees help push NH litigation tab over $2.3m
And next year is likely to bring more of the same, according to Associate Attorney General Ann Rice, who told the governor and Executive Council recently, "I anticipate that those kinds of costs are going to continue for a while."
When the requests for more money come in, the Joint Fiscal Committee at the State House has to find it in underspent accounts or unexpected revenue, subject to final approval by the Executive Council.
"Historically, litigation expense has been budgeted at about $350,000 a year, and we've had to come back and request more, depending on what our expenses are," Rice told the governor and council in June. "This is an extraordinary year in terms of expense, but we will exceed the $350,000 even in normal years."
The $2.3 million appropriated in 2013 far exceeds the $710,000 spent on litigation in 2012 and was mostly for outside counsel. The Department of Justice has 53 staff attorneys and a budget of $27.6 million.
While the tobacco case is winding down, other cases are just starting to heat up. Executive Councilor Chris Sununu, R-Newfields, recently expressed his concern over a lawsuit filed by TLT Construction Corp. of Wakefield, Mass., has already cost the state $106,569 for outside counsel, second highest on the list for 2013.
"This is in my mind a ticking time bomb for a large amount of money," Sununu told Rice at the June meeting. In a subsequent interview, he expressed his fear that if the state doesn't resolve the lawsuit and resume the project, it will lose the federal funding.
Sometimes the DOJ has no choice but to go outside for the necessary expertise, but many of the cases now farmed out could be handled internally with more attorneys, Foster said.
He pointed out that the typical hourly rate for outside counsel is $250 to $275 an hour. At that rate, it only takes 1,000 hours to generate $275,000 in billings. The department's attorneys make between $63,180 and $83,382 a year in base pay, according to the state's "Transparent NH" website. With benefits, their annual compensation package averages $100,000.
"I plan to bring those sorts of thoughts to the Legislature for the next biennium and have them think about it," Foster said. "I think if we had the bodies, we could do a lot of the work in-house."
Executive Councilor Chris Pappas, D-Manchester, thinks the argument has some merit.
"It's almost like that issue that came up two weeks ago with a consultant the Department of Education was looking to hire," Pappas said. "There's something to be said for having state employees on the job to do the work as opposed to contacting things out in ways that become more expensive."
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