Greater Greater Washington

Should DC downsize its elected Attorney General?

In 2014, the District will join 43 states when its Attorney General becomes elected by the people, rather than being appointed by the Mayor. This is the result of the people's overwhelming choice in the November 2010 referendum, when 76% of voters ratified a Home Rule Charter amendment changing the selection process for the Attorney General.

Not everyone agreed with this change. In fact, when DC Appleseed suggested that the Council present this issue to the voters, we highlighted several arguments against the change. One of them was the potential for disagreement and tension between an elected attorney general and an elected mayor.

This potential has led the current Attorney General, Irv Nathan, to propose transferring a significant amount of his office's authority to the Mayor before the new Attorney General becomes elected. However, Mr. Nathan's proposals also have significant dangers.

The Attorney General's proposal and its potential benefits

The District's legal services would undergo three significant changes under Mr. Nathan's proposal. First, the bill would transfer control over the lawyers who advise agencies from the Attorney General to agency directors. Second, it would establish the Mayor's Office of Legal Counsel to coordinate those agency counsel. Finally, it would move the Child Support Services Division from the Attorney General to the Department of Human Services.

Mr. Nathan testified to Councilmember Tommy Wells' Committee on the Judiciary and Public Safety on March 26 that these changes are needed "to minimize the potential for conflict . . . within the divided executive." He argued that his proposal is consistent with the voters' intent, because it leaves the Attorney General responsible for litigation and binding, formal legal opinions, and the Mayor responsible for programmatic, budget, and policy choices.

According to Mr. Nathan, it's reasonable to expect harmful conflict to arise because the Attorney General will aspire to be Mayor and therefore will find it to his or her political advantage to oppose the Mayor. This could undermine the Mayor's ability and responsibility to establish and implement policy for the District. The bill seeks to prevent this by making agency counsel, through their agency directors, accountable to the Mayor, rather than to the Attorney General.

Mr. Nathan is right that the elected Attorney General may well want to run for mayor, and that there could potentially be disagreements and tension between the two officers. Mr. Nathan is also right that an attorney general who believed the Mayor was attempting to implement policy not in accordance with law could effectively thwart that policy by directing agency counsel to oppose it. On the other hand, removing the Attorney General's authority over agency counsel also presents at least three potential downsides.

Potential problems with to the AG's proposal

First, the whole point of electing the Attorney General was to ensure that legal advice given by that officer and the agency counsel he or she supervises would be independent of the Mayor and accountable to the public. When the DC Council passed the referendum bill, it explained in its report that making the Attorney General elected would ensure the public that the officer "conducts their legal business without fear or favor, respecting the law and not pursuing the political agenda of anyone in either the legislative or executive branches of the government." Taking authority over agency counsel away from the Attorney General and transferring it to the Mayor appears to be at odds with this purpose.

Second, the proposal appears to be a step backwards from the efficient consolidation of legal services under the Attorney General that the Council spent 15 years establishing. Until 1998, the District's legal services were organized similarly to how Mr. Nathan now proposes, with agency counsel being independently controlled by their respective agency directors. The professionalism, coordination, and unity of the District's legal operations suffered under this bifurcated structure.

The Council remedied these problems by consolidating agency counsel under the Attorney General, first giving the then-Corporation Counsel supervisory authority in 1998, then giving the Attorney General complete control in 2005. This consolidation brought the District into line with the best practices in states that elect their attorneys general.

Among other things, the consolidation ensured that the Attorney General would be better prepared to defend agencies against litigation, because the Attorney General would have been supervising and coordinating actions by agency counsel action before any lawsuits could arise.

Finally, Mr. Nathan's proposal appears to undercut the referendum passed by voters. At the time of the referendum, no suggestion was made that its passage could require or permit a substantial downsizing of the office. Instead, the referendum was presented to voters as a way to make the office independent of the Mayor and the Council and accountable to them. Yet the current proposal undermines the authority of the office and transfers that authority to the Mayor.

At the same time, the downsizing of the Attorney General's office seems likely to reduce the willingness of the ablest candidates to run for the office, another result that appears inconsistent with the voters' intent.

Respect the voters and leave the Attorney General alone

The risk of tension and conflict between an elected Attorney General and an elected Mayor is real. But it is not at all clear that this risk is a problem that needs to be "fixed." In fact, it was expected that there would be constructive tension between the Mayor and the Attorney General that, on balance, would benefit the public. It was also expected that having legal advice that was independent of the Mayor would be of benefit to the public.

At the same time, it is clear that transferring authority over legal advice to the Mayor would bring very real costs. It would return the District to a dysfunctional system of legal advice that existed before 1998. It would potentially contradict voters' expectations when they passed the Charter Act referendum. And it would discourage able candidates who might run for the new office of elected Attorney General.

The best course, therefore, seems to be to allow the people to elect an Attorney Genial who would administer the office as it is now constituted. If the hoped-for benefits from this do not materialize, and the downsides that Mr. Nathan fears occur, there will be time later to make changes. For now, the Council should conclude that if it isn't broken, don't fix it.

Walter Smith is the Executive Director of the DC Appleseed Center for Law and Justice, an independent organization that works with pro bono attorneys, business leaders, and community experts on the biggest public policy problems facing the National Capital Area. 

Comments

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My belief is that even well informed voters did not/do not recognize the potential governance problems the new structure creates for the executive branch [I note that the conclusion is written in the passive - "it was expected that ..." Expected by whom?]. Given how opaque the potential governance costs of the structural change were, it was not the sort of initiative that was suitable for a ballot initiative.

But that's now history. Quite apart from the internecine legal opining that inevitably will arise between the elected Mayor and the elected AG (and referenced in the article), it will become more difficult to coordinate a range of enforcement activities under the new structure. Already DC's criminal justice system is divided between local police and federal prosecutors, who report to different bosses (the Mayor and the President of the United States, respectively). Under the new structure, additional enforcement policies will become more difficult to coordinate rationally. If police (or other local agencies with enforcement authority) and local prosecutors working for an elected AG do not agree on policy initiatives or enforcement priorities, the disagreement will not be appealable to the Mayor for resolution. It's a substantial problem.

Dr. Peter Venkman said it best, "This city is heading for a disaster of biblical proportions....dogs and cats living together...mass hysteria."

by Mark Jordan on May 1, 2013 2:31 pm • linkreport

So has anyone other than David Catania been suggested as a candidate for this position next year?

by Patrick Kennedy on May 1, 2013 2:55 pm • linkreport

Our political process, as demonstrated again in last month's election to the Council, is not designed to produce a winner with superior intellectual skills and experience required of a lawyer ready for the position of DC's top job. The initiative was a bad idea but passed overwhelmingly by citizens yearning for freedom and the rights of all Americans. Whatever the result (and I don't favor Mr. Nathan's plan), it will be hard to change course.

by David Marlin on May 1, 2013 3:50 pm • linkreport

The "conflict" is not recognized as potentially a non-problem (and possibly a good thing) until the end of the column. This does happen in the states, although often as a matter of who is a bigger fool (see Virginia). Having more elected offices is probably a way of allowing DC's political structure to have upward movement (as well as opportunities to get voted out of their political careers), thus possibly cutting down on the councilmembers for life like Evans and Barry.

by Rich on May 1, 2013 4:02 pm • linkreport

"The potential for conflict" is exactly the reason we need an elected attorney general. The 2010 referendum was a direct response to then Mayor Fenty's decision to appoint Peter Nickles, a long-time crony of his who rubber stamped his every move and acted more like the mayor's personal attorney than the people's lawyer, as attorney general. In my opinion, the voters clearly stated their desire to have an attorney general who was willing and able to act as a check on the mayor's authority and and transferring power from the elected AG back to the mayor's office would be subverting the will of the electorate.

by Jacob on May 1, 2013 4:27 pm • linkreport

I always appreciate the well reasoned arguments of the Appleseed center, even when they are misplaced.

That is why I find it strange they are making the "If you do this, marion barry will come back and eat your children" argument, rather than a more factual one.

The real evidence -- that a return to giving agencies their own legal counsel will lead to great litigationc costs -- isn't well supported here. If I remember the corporation counsel's office, the problem was incompotence rather than diffusion.

That being said, I'd rather see an appointed AG and an elected prosector. I have to wonder how many voters understood the difference.

by charlie on May 2, 2013 6:59 am • linkreport

1. The fact that most states and many other local governments have elected AGs/prosecutors demonstrates that the sky won't fall in in DC with such. ANd yes, I believe strongly that the law (and government) derives from the people so that the AG should be elected. (In fact, I believe this at the national level as well.)

2. WRT Charlie's point, I think that if an elected AG and office demonstrates superior competence over time as an incremental step, it would be possible to work towards shifting control of the local criminal prosecution section of the US AG to DC (while the US AG, like every other Federal AG office, would keep its jurisdiction over federal crimes).

But I can see why the Feds wouldn't want to do this now.

And of course, the Nickles and now Nathan's stuff doesn't make the case for local control of criminal prosecution stronger.

by Richard Layman on May 2, 2013 12:56 pm • linkreport

I don't understand why "charlie" decided to throw a strawman out there in her/his argument. I didn't read that anywhere in this article.

If we want to go down that road, though, let's talk about how "divided executive" is reminiscent of the Bush/Cheney regime's talk of the "unitary executive."

by Geoffrey Hatchard on May 2, 2013 3:19 pm • linkreport

I respectfully disagree with Walter Smith, and I think that the above letter does a discredit to the work of the OAG task force that developed this proposal by omitting the careful consideration that went into it.

In this case, the OAG task force took several months to develop this proposal. They worked with NAAG (all of the other State Attorneys General, basically), Columbia Law School, and judges to consider the role and function of a divided state executive. This is a discussion that has happened in 43 states, one way or another. Under Nathan’s proposal DC is following the example of the last state to make this change, Pennsylvania, which at the time followed its peers.

There is significant value in making a politically accountable attorney generally less political in her role, to the extent possible. The AG's office serves principally as a law enforcer and a watchdog. While the input of an AG’s office on how a policy will affect something is beneficial, it is nice to have that be formal and official to help maintain the integrity of the AG’s office and keeps the communication more easily reviewable by the public. It's an intra-executive check and balance, and it saves any serious fights between the mayor and the AG for situations when the AG’s office suspects, investigates, and prosecutes fraud or abuse in the executive.

I do not see any arguments, convincing or otherwise, that the three harms Mr. Smith is citing are even probable.

1) Transferring "informal" legal advice and counsel for the agencies to the mayor's office does not automatically return to "a dysfunctional system of legal advice that existed before 1998". City government overall has changed a lot since 1998, and "formal" advice can still be sought for the AG. What prompts Mr. Smith to suggest that dysfunction will arise? There isn’t much argument presented to explain this assertion.

2) “Potentially contradict voters' expectations when they passed the Charter Act referendum” … Despite whatever intent the original promoters of the referendum might have had, I see no evidence that the electoral mandate speaks either way to the question of organization of the AGs office, merely that its head be elected. This is an inappropriate merger of ideas because a) whether the AG is elected and b) what falls under the auspices of the AG are entirely distinct questions.

3) “And it would discourage able candidates who might run for the new office of elected Attorney General.” This isn’t really explained and is counter-intuitive. Elected AG is a well-known path to run for Governor, and this AG will be structured like several other state AGs. A tighter, more-focused mandate does not automatically make the AG weaker. Instead, it allows them to build a non-political reputation as a public advocate and chief law enforcement officer without needlessly embroiling the office in budgetary and programmatic fights between constituencies.

An attorney general does not belong in programmatic or budgetary decisions for a state—that is the governor/mayor’s role. If the electorate is unhappy with a programmatic decision in their state, they can elect a new governor/mayor or encourage the legislature/council to get involved. The idea of wanting the mayor and AG to tussle over programmatic decisions sounds like we have no faith in our ability to elect the mayor we want. That may or may not be the case, but we won’t solve for that by creating fights for power within the executive branch. The dysfunction the author worries about is more likely if we invested too much power and a murky mandate in the AG.

by Katherine Mereand-Sinha on May 9, 2013 2:34 pm • linkreport

Why "charlie" decided to throw a strawman?
And anyone else than David Catania been appointed as a candidate for this position next year?

by Sahil on May 14, 2013 1:51 am • linkreport

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