The District's First Elected Attorney General

In 2010 the voters of the District approved having the Attorney General be independently elected. Today the AG is appointed by the Mayor. There are many issues which remain regarding how that office will function and they are being debated in Councilmember Tommy Wells’ committee. I would urge Councilmember Wells to take the advice contained in a letter sent to him by former Mayor Anthony Williams and Georgetown law professor Peter Edelman among others and support Bill 20-134, the Elected Attorney General Implementation and Legal Service Establishment Amendment Act of 2013.

This amendment was written by the current AG, Irv Nathan, who at this time has said he will not be a candidate for the office next year. Actually no one has announced for the position yet. In deference to open disclosure I have urged former Councilmember Bill Lightfoot to consider running for the position. Bill 20-134 was sent to the Council by the Mayor to clarify how the new independent AG’s office could function in a way that would give future Mayors the ability to continue to control the agencies they are responsible for.

The issues addressed in the letter support the Mayor’s plan for a smooth transition to an independent AG. The proposed legislation (PDF) calls for a separate Mayor's Office of Legal Counsel to oversee in-house agency attorneys and changes the chain of command for agency attorneys.

Back in February the Legal Times Blog reported that “Under Gray's plan, agency legal divisions would no longer report to the attorney general's office. Instead, agency general counsel would report to their agency heads. The Mayor's Office of Legal Counsel, which would include a director appointed by the mayor and a small group of lawyers, would coordinate agency legal departments and provide legal advice to the mayor and executive branch. Members of the attorney general's office who primarily work for an agency would move to that agency. According to the attorney general's office, that change would affect about 140 employees, including an estimated 100 lawyers. The bill would also add a new provision to the D.C. Code stating that none of the changes would affect the attorney-client privilege between the attorney general's office and agency personnel. The attorney general's office is expected to keep most of its current functions after it becomes independent, including defending the city against litigation and prosecuting certain misdemeanors and juvenile crime”.

What the Mayor’s bill suggests is that the Attorney General’s office should in essence use the model that the federal government uses and it is a model that States like New York also use. The alternative is having attorney’s working in Mayoral agencies responsible to the Mayor being responsible to another independently elected official. One can only imagine the chaos that could ensue if the AG has a different political agenda than the Mayor and wants to influence the attorneys against the policy of the agency in which they work.

Nothing in the bill changes the fact that the Attorney General continues to have the final say for the executive branch on questions of constitutional and statutory interpretation in the District. The bill also makes clear that even when the agency lawyers are removed from the AG’s office there will be more than enough resources still available for him/her to carry out the work of the Office.

Wells’ committee’s draft report says “Removing agency counsels’ ability to provide sound legal advice without fear of retribution will do nothing to stem the embarrassments of incompetence, corruption and graft the District government continues to suffer.” It goes on to say “having all agency lawyers report to the attorney general ensures there is an independent voice focused on what the law requires, not what the Mayor wishes.” What Wells disregards is that the independently elected AG is just another political office and in itself will do nothing to stem incompetence, corruption or graft.

There are already three individuals including Wells who have announced they will run for Mayor next year. The next Mayor’s term will begin concurrently with the term of the new independently elected AG in January 2015. It would be wrong to have the next Mayor start his/her term with one hand tied behind their back which is what Wells’ view of the AG’s office would accomplish.

I urge the Council to back the bill submitted by the Mayor so that we can intelligently move forward with a transition to a strong independently elected AG. This column first appeared in the Washington Blade.