Whistleblower Frank Foy plans to go to court to try and stop the state from defending a former State Investment Officer and at least one public official, his attorney said Tuesday.

“We’re waiting to get hearings,” Victor Marshall said, referring to a legal complaint his client has filed in the 1st Judicial District Court in Santa Fe.

The state is defending former State Investment Officer Gary Bland against Foy’s complaint that he participated in fraud against the state that resulted in the loss of taxpayer money.

The state also is defending Educational Retirement Board (ERB) chairman Bruce Malott in a separate suit brought against the ERB for refusing to turn over what Foy and Marshall say are public records, according to an amended version of Foy’s complaint filed last week in a state court in Santa Fe.

Marshall said the state should stop footing the bill for those officials.

So far the state has spent hundreds of thousands of dollars defending itself against the Foy complaint.

That led state Sen. John Ryan, R-Albuquerque, to introduce legislation during the 30-day regular session that would have prevented the state from defending an employee if the state is also the one bringing the charges. That legislation died during the session.

Opponents of Ryan’s bill said public officials, including board members, need to be protected from paying legal costs resulting from actions taken in their roles as public officials. Otherwise it would be difficult to recruit people to serve on boards and commissions, they said.

But Marshall said Tuesday the state shouldn’t defend those who helped “steal” from the state. No one has been criminally charged or convicted from the actions Foy’s suit scrutinizes, although some of the allegations appear to have interested federal authorities.

The State Investment Council, which Bland led when he was the State Investment Officer, is at the center of a federal criminal probe and a federal securities investigation.

Foy is suing on behalf of the state by using a 2007 state law to sue several financial firms, public officials and others to try to recover taxpayer money that the former ERB investment officer says was lost because of fraud.

The state could potentially recover hundreds of millions of dollars under a provision in the 2007 that allows for the collection of up to triple the amount of money lost because of fraud.

Foy and Marshall estimated Tuesday that the state has lost $288 million due to fraud, up from the initial $90 million Foy alleged in his original complaint filed in July 2008.

That means if Foy proves his case a court could award more than $800 million. Foy and Marshall would collect a portion of that award.