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.