Top attorney resigns after giving Idaho agency opinion without AG Raúl Labrador’s consult

A top attorney in the Idaho attorney general’s office has resigned after giving a state agency written legal advice without Attorney General Raúl Labrador’s knowledge, according to the office.

A division chief who oversaw a legal opinion about Health and Welfare’s distribution of federal grants resigned Friday, Associate Attorney General Mitch Toryanski told the Idaho Statesman. The opinion, issued in January, showed Chelsea Kidney was that division’s chief when the opinion was released. Her name and title appear on the opinion.

The opinion, issued January, had stated that Health and Welfare’s distribution of the COVID-19 relief grants were lawful. Labrador didn’t know the opinion was issued and disagreed with the analysis, Toryanski told the Statesman.

“Attorney General Labrador was never apprised of or consulted in the formulation of this opinion and he wouldn’t have signed it,” Toryanski said in an emailed statement.

Department of Health and Welfare officials requested the legal opinion twice, once in November and once in January, amid concerns that it distributed COVID-19 relief grants to ineligible participants. A November opinion, issued by former Attorney General Lawrence Wasden’s office, and a January opinion were almost identical, but the second was issued under Labrador’s letterhead.

Idaho lawmakers last month asked Labrador’s office to investigate the Department of Health and Welfare’s distribution of federal Community Partner grants, more than $70 million targeted at child care providers. The funds may have gone to ineligible recipients, a co-chair of the Legislature’s budget committee previously told the Statesman.

Toryanski said the opinions are “legally deficient.”

AG demands sought to preserve records

Attorney general officials declined to name the division chief who resigned or say whether they asked the chief to step down, citing a policy barring disclosure of personnel matters.

But a copy of the January opinion, included in a recent court declaration by Department of Health and Welfare Director Dave Jeppesen and obtained by the Statesman, showed the attorney general’s Health and Human Services Division issued the analysis. Wasden appointed Kidney chief of the division in 2021, according to a news release published at the time.

After Kidney resigned, Toryanski said, attorney general officials asked the division chief to preserve data on her state-issued cellphone. When attorney general officials retrieved the phone, it had been reset to factory settings and all data was erased, Toryanski said.

Niki Forbing-Orr, spokesperson for the Department of Health and Welfare, told the Statesman that it’s “standard procedure” to reset a departing employee’s phone. Images of the phone’s contents were preserved by the department, Forbing-Orr said.

“We have all those records,” she said. “We believe that the data is ours, and that, at this point, they aren’t entitled to that data, because” the attorney general’s office has “a conflict with the department.”

The attorney general’s office earlier this month issued civil investigative demands to people believed to have knowledge of the grants, including public and nonprofit recipients and health department officials.

Toryanski said the demands were meant to “ensure relevant information and any important data was preserved and not destroyed in this investigation.”

Dozens of grant recipients and three health department officials have asked an Ada County district court to block the demands, which they said are overbroad, burdensome and meritless.

Private attorneys for Jeppesen and two other health officials last week pointed to the attorney general opinions as evidence of the legitimacy of the grants.

“The Idaho attorney general’s office has already determined that IDHW’s implementation of the grant program was lawful and within both state and federal guidelines,” the health officials’ petition said.

The story was updated 9:55 a.m. March 28 to include additional statements from the Department of Health and Welfare.