One elected state office holder has taken the rare step of filing a lawsuit against another elected state office holder, asking a judge to settle a dispute over the latter’s obligations under Vermont law.
State Auditor Doug Hoffer sued Attorney General Charity Clark and her office in November after he said they failed to provide him with a legal opinion he had sought in the course of conducting an audit related to the city of Burlington.
“We all have things to do that we do not want to do,” reads Hoffer’s lawsuit, filed in Chittenden County Superior civil court in Burlington. “The Attorney General has a statutory duty to provide legal opinions to officers of the State of Vermont. This is an action to enforce that duty.”
Hoffer is also asking Judge Helen Toor to allow him to hire an outside attorney in the lawsuit. In the suit, he asserts that the attorney general barred him from doing so.
The Vermont Attorney General’s Office filed a motion last month seeking to dismiss the lawsuit.
“Plaintiffs attempt to appeal legal advice provided and judicially compel different advice from the Attorney General and her office,” the motion filed by Assistant Attorney General Sarah London stated. “This action is unfortunate and legally unsound. It can and should be readily dismissed.”
The state auditor, London wrote, has several duties and responsibilities defined by statute.
“They do not include unilaterally suing the State or its officers,” she said.
Hoffer, who was first elected auditor in 2012, said Monday that the issue arose last year when his office sought a legal opinion from the attorney general about Burlington’s tax increment financing and use of bonds. Tax increment financing — often referred to as TIF — is a mechanism that allows municipalities to borrow to finance infrastructure projects and pay back the debt using increased property tax revenue from the completed projects.
The specific question is now moot, Hoffer said, as his office has since completed that audit and is expected to publicly issue the resulting report on Tuesday.
“What we had to do is make a decision about what we thought the statute said and the rights and obligations of the parties,” Hoffer said.
But still at issue, he contended, is whether the attorney general is required to provide his office with legal opinions when he asks for them, which he said happens once or twice a year. He said Clark’s predecessors readily responded to such requests before she took office a year ago.
“When we find ambiguity for any number of reasons in statute, we ask the attorney general for an opinion,” he said.
The attorney general’s office sharply rebuked that stance on Monday, calling the lawsuit “ill advised” and “unfortunate” in a statement sent to VTDigger.
“It is legally unsound, has wasted State and court resources, and will be unproductive,” read the statement provided by Lauren Jandl, the attorney general’s chief of staff. “The irony of the Auditor insisting on legal advice from the Attorney General while also not accepting her legal decision with which he disagrees is not lost.”
It continued: “The Attorney General is disappointed her fellow statewide office holder feels his own legal interpretation of her duties is superior to hers when it very plainly is not.”
In the motion to dismiss and correspondence between the two parties that were attached as exhibits, the attorney general’s office drew a distinction between formal published opinions and informal legal advice, painting the former as rare. It stated it has offered “informal legal advice” to the auditor in the past, including on the issues of TIF districts and municipal bonding, but that its “formal published … opinions typically do not relate to municipal law.”
“Recently, these informal opinions have resulted in a series of actions and responses unique to the TIF context. Specifically, they have resulted in repeated requests for reconsideration and meetings with the Attorney General’s Office by a municipality,” London wrote to Hoffer in November, describing a number of other reactions to the informal advice.
The motion and exhibits showed the two offices had discussed the issue in emails, meetings and other formats, including as early as February 2023.
Hoffer said he is working on the lawsuit with attorney Matthew Byrne, of the law firm Gravel & Shea, who has taken on the case at no charge until a judge settles the question of whether he can be paid to continue the case. The lawsuit states the plaintiffs are the Office of the Auditor, “in its official capacity,” and Hoffer “as a citizen of the State of Vermont.”
The auditor said the attorney general’s office has told him that his office could seek legal opinions from outside private counsel, but he said those “optics” would not work in the Legislature, which he described as his primary audience.
“If we get an opinion from somebody I hire, I can hear people say, ‘Oh, Hoffer just hired somebody to say what he wants,’” he said.
The lawsuit notes that the auditor’s position is described in the Vermont Constitution while the attorney general’s is not. It references a Vermont statute that states, “The Attorney General shall advise the elective and appointive State officers on questions of law relating to their official duties and shall furnish a written opinion on such matters, when so requested.”
It says that the attorney general has “conceded” that the state auditor is elected, is seeking an opinion to questions of law, and that the questions related to his official duties, and asks for a judgment that would “finalize the controversy and offer relief from uncertainty.”
The judge has yet to issue a ruling on the attorney general’s office motion to dismiss.
Hoffer is a Democrat/Progressive and Clark is a Democrat.
A footnote in the attorney general’s office filing stated the nature of the lawsuit was “extremely rare.” No other similar cases are cited in filings by either party.
Hoffer said his office and the attorney general’s office continue to work together on other matters. “It’s not like everything is tied up. That’s not what’s going on,” he said.
Clarification: Due to an editing error, an earlier version of this story was unclear on the type of legal opinions the auditor has said he is seeking.
