Ken Hare In Depth: Do ASU legal fees violate executive order?

MONTGOMERY, AL (WSFA) - When Alabama State University hired a retired federal judge at $375 an hour to represent university officials in an ongoing probe, the public university may have violated the terms of an executive order by the governor's office that limits the hourly fees that an arm of the state may pay except under "extraordinary circumstances" that are preapproved.

The executive order was issued in 2010 by former Gov. Bob Riley, but a spokeswoman for Gov. Robert Bentley said this week that it remains in effect and that the governor's legal office considers it to apply to public state universities.

I recently wrote about ASU hiring retired federal judge U.W. Clemon at $375 per hour to provide advice in the ongoing forensic audit of the university. The audit was ordered by Gov. Bentley after the surprised firing of Dr. Joseph Silver as president of the university last year. Silver said his dismissal was a result of his attempting to ask questions about how money and contracts were being handled at the public university.

The executive order effective since 2010 states that "no legal contracts for any state agency shall exceed a rate of $195 per hour" unless it is approved by the governor.

The executive order further states that hourly rates for attorneys exceeding $195 per hour "will only be approved under extraordinary circumstances" after a written explanation of those circumstances is provided to the governor.

Bentley's spokeswoman Jennifer Ardis said no such exception was sought by ASU to hire Clemon.

An ASU public relations spokesman referred questions about legal fees involved with the ongoing probe to Clemon, but Clemon refused to answer the questions.

Clemon responded to the questions with an email that stated that he was "not inclined at this time to burden my client with additional legal fees generated solely by responding to your continuing requests."

In addition to questions about whether his hourly rate ran afoul of the executive order, I asked the university's public relations office several other questions. Spokesman Ken Mullinax responded that the questions "need to be directed to our attorney, Judge Clemon."

Clemon, in turn, declined to answer the following questions:

-- Have other outside attorneys been engaged to represent ASU in the ongoing forensic audit, and what are their names and hourly fees?

-- How much to date has Judge Clemon billed ASU, and what was the date of the earliest billing?

-- If any indictments or criminal charges are brought against ASU administrators, does the university intend to pay for their legal representation?

Again, no response to what I consider to be valid questions regarding public information to which Alabama taxpayers deserve answers.

Clemon did say in his email response: "When you have been provided answers by the other Montgomery-based state universities to the similar inquiries, please let me know."

But as far as I know, there are no other state universities that have hired outside attorneys to represent them in an ongoing forensic probe of contracts and other financial information. Nor do I know of any other state universities that bought out their former president's contract with $685,000 in public money after he said he raised questions about the handling of contracts and other financial issues.

ASU's interim president, Dr. William Harris, recently recommended that the ASU board of trustees allow him "to appoint counsel for university officials in their personal and official positions regarding the agreed upon procedures of the forensic audit and certain other investigations."

A source indicates that Clemon already was involved prior to the granting of that authority on May 10, which was the reason for the question involving his earliest billing.

As for Clemon's stated concern not "to burden my client with additional legal fees generated solely by responding to your continuing request," I must note that every one of the questions also went to the university's public relations spokesman, who could have answered them. It was ASU's decision to pay Clemon to respond with what was essentially a non-response.

The bills and payments from attorneys are public records, so it is likely that the state's taxpayers eventually will know what it is costing them for ASU to provide outside legal counsel to administrators during this forensic audit.

But for now, just as with the earlier column, all I can say is for taxpayers to stay tuned.


Ken Hare was a longtime Alabama newspaper editorial writer and editorial page editor who now writes a regular column for WSFA's web site. Email him at

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