Chairman Wells and Members of the Committee:

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1 Statement of Lynne Ross Hearing on the Elected Attorney General Implementation and Legal Service Establishment Amendment Act of 2013 Before the D.C. Chairman Wells and Members of the Committee: Thank you for inviting me to discuss the Elected Attorney General Implementation and Legal Service Establishment Amendment Act of In 2014, the District will join 43 other states when residents for the first time elect their Attorney General. I commend the District for making this change, which will make the office independent and accountable to the public. However, based on my decades of experience studying and working with Attorneys General throughout the United States, I am concerned that this bill will not serve the people or the District government well. 1. Background I have spent most of my career discussing similar types of issues with the Attorneys General of the states and jurisdictions, having spent much of the past 40 years working for the National Association of Attorneys General (NAAG). I began there as a special assistant starting in 1976, then became the deputy director/legislative director, and finally, served as the Executive Director from 2000 to For the past five years, I have taught a class entitled State Attorneys General: Powers and Duties at George Mason Law School. I am also the editor of the first edition of State Attorneys General: Powers and Duties, published by the Bureau of National Affairs in 1990, and co-editor with Emily Myers, Antitrust Counsel at NAAG, of an updated edition. Emily just completed another update, which is available through NAAG. The District of Columbia is a member of NAAG. I am honored to have worked over the 27 years I was at NAAG with so many talented D.C. Corporation Counsel, and more recently when the title changed, Attorneys General. The current Attorney General, Irv Nathan, follows in the proud legal tradition and excellent representation that the District has had for decades.

2 Page 2 of 7 I appreciate the work that Appleseed has done over past years in studying, analyzing and making recommendations about ways in which the District s Office of the Attorney General can be improved. Their work makes a difference and provides some thoughtful analysis and insights. I worked particularly closely with Bob Spagnoletti from , as he sought to enhance and modernize the Office of the Attorney General through internal reorganization with a focus on management, attorney accountability, and training; through consolidation of legal services in the Office of the Attorney General to provide legal consistency throughout city government; and through a high quality of legal services provided to the Mayor, Council, agencies and the public. 2. All Legal Services Should Be Consolidated Under an Elected Attorney General. With its first elected Attorney General in 2014, D.C. will join the ranks of 43 states and Guam that elect their Attorney General. In seven states, the Attorneys General are either appointed by the Governor, secret ballot of the Legislature (Maine), or the Supreme Court (Tennessee). The Attorneys General of the other jurisdictions, who are also members of NAAG, are also appointed by Governors in American Samoa, Virgin Islands, Puerto Rico and the Northern Marianas Islands. While the roles and responsibilities of Attorneys General have developed over the years, it is noteworthy that 44 states and Puerto Rico created the Office of Attorney General in their constitution. The methods of selection, e.g., appointed versus elected, have developed over time. Many states started with legislative selection and then changed to election along the way. In more recent times, Indiana changed to election in the 1940s, and Pennsylvania changed in No state has made the change back to appointed from elected. As stated in the Powers and Duties book, there is no correlation between the selection process and the extent of the Attorney General s powers. So, for example, while the Attorney General in Delaware is elected and in Alaska is appointed, the Attorney General in both jurisdictions has control over all legal and prosecutorial functions. In the mid-1990s, both Utah and Idaho consolidated legal services in the Office of Attorney General.

3 Page 3 of 7 While there may be differences on the issue whether agencies may have their own counsel, nevertheless the majority of Attorneys General recognize the advisability of consolidation of legal services in a single source within the Office of the Attorney General for the following key reasons: Ensuring a legal policy across agencies that is fair, consistent, and efficient Avoiding duplication of legal expertise, effort, and resources Generally offering better procedures for review of legal work and oversight, as the Attorney General s office usually has more legal staff than agencies Ensuring that the legal staff gives independent advice, which can be jeopardized when agencies, which make decisions regarding the attorney s compensation, bonuses and benefits, employ their own house counsel Avoiding direct conflict of legal opinions concerning a proposed agency course of action or inaction Ensuring that legal advice is consistent with the interpretation of statutory requirements. With the increased visibility of Attorneys General in consumer protection and other high profile areas, such as tobacco litigation (1998), the major recent mortgage settlement, and investor protection (for some Attorneys General who oversee securities and/or state pension funds), the debate has increased over the role of Attorneys General and their powers vis-á-vis the method of selection: elected or appointed. The District of Columbia is to be commended for choosing a method of selection that will ensure that the Office of the Attorney General is independent and accountable to the voters. 3. The Current Bill Raises Several Concerns. I have several concerns about the Elected Attorney General Implementation and Legal Establishment Amendment Act of 2013 that is pending in this Committee. A. The bill would undermine the Attorney General s independence.

4 Page 4 of 7 First and foremost, the legislation would undermine the independence of the District s Attorney General. The legislation would establish the Mayor s Office of Legal Counsel headed by its own Director, potentially pitting the decisions of the Director of the Office of Legal Counsel against the decisions of the newly elected Attorney General. Agency counsel would report to the Mayor s Office, rather than to the independent Attorney General. This approach proposes a potentially major new and contentious, time-consuming role for the Mayor, and it is a step backwards from current procedures. Under the proposed legislation, the new Director of Legal Counsel hired by the Mayor takes back some functions now handled by the Attorney General s Office, including hiring/personnel functions regarding agency counsel, representation before the federal Executive Branch, and resolution of interagency disputes. These are functions that are now handled by the Attorney General and that help the Attorney General ensure consistency in the District s legal representation. Such a dramatic change to be implemented before the Attorney General is elected threatens to undermine the goal of independence, which was an initial reason for making this transition in the mode of selection from appointed to elected. If this legislation is adopted, it would be a fundamental reversal of the Attorney General Office s independence. Shared legal authority with the Mayor as envisioned in this proposed legislation diminishes the role and responsibilities of the Office of Attorney General. This approach also raises concerns that the most qualified candidates will be less likely to run for Attorney General. Individuals who want to run for this office may not be attracted to a job whose role is limited to determining which litigation messes have been created and need to be cleaned up. One particular area where this proposal would weaken the independence of the city s legal advice is in the subordinate agencies. In the Attorney General world, the concept of captive agency lawyers is a widely discussed concern. When the agency hires its own lawyers, they can become "captive" and (not to impugn their integrity) provide the advice they know the agency wants to hear. This can produce results that are the opposite of "independent" legal advice that the Attorney General s Office might provide. If one's promotion, pay, and employment are dependent on the Agency director, the quality of advice can be affected, as Attorneys General from other states have noted. And then potentially, the Attorney General would have to defend bad agency

5 Page 5 of 7 legal policy in Court. This needlessly creates an obstacle to the implementation of a practice of preventive law-ensuring agencies are properly applying law applicable to them but also that there is not an inconsistency among agencies, for example, in the application of administrative law procedures. As an outside observer, I read about the clashes between the Attorney General and the General Counsel to the Mayor in the Fenty Administration. A certain amount of tension can be healthy and stimulates positive discussion about ways to resolve problems. But that experience was instructive in showing the importance of an elected, rather than appointed, Attorney General with clear delineation and expectation that the Attorney General serves as the chief legal officer of the District, with responsibility for setting and managing legal policy, and providing counsel to the Mayor, not the other way around. B. The bill anticipates an unrealistically high level of conflict between the Attorney General and the Mayor. My second concern with this bill is that it apparently anticipates a constant political rivalry between the Attorney General and the Mayor that, in reality, may not occur. Attorneys General speak often with each other about their relationships with the Governors and Legislatures. Sometimes these relationships are bumpy and sometimes they are not. But professionalism is highly valued by Attorneys General. They serve to provide legal advice that is independent, fair, consistent and efficient, which is their track record over many years, despite individual disagreements over legal policy that inevitably develop. In those states with elected Attorneys General, the press, among other critics, often comments that Attorneys General file certain cases to highlight their appeal and keep themselves in the public eye so that they can eventually run for higher office. It is true that some Attorneys General in some states have gone on to be Governors, Senators, members of the House of Representatives, Vice Presidents, and even Presidents of the United States. However, during their tenure as Attorneys General, they are sworn to uphold the laws of their jurisdiction and to fulfill the responsibilities of their office. The natural tension between the Mayor (or Governor) and the Attorney

6 Page 6 of 7 General (and the Council or Legislature) can be very productive, with mutual respect and good relationships in carrying out their missions. One should not assume that the relationship between the Mayor and the Attorney General will be one of conflict. Rather, one can expect that sometimes there will be differences of opinion among reasonable and bright individuals; elected officials should be able to work with each other to make life better for the residents of the District. That is what the public would expect. Establishing an elected Attorney General s Office helps to ensure independent legal guidance is available, rather than tasking the Mayor with implementing both public policy and legal policy. C. The bill is likely to create additional conflict between the Attorney General and the Mayor. Finally, my last concern is that this bill contains some uncertainties and leaves some areas undefined. These are likely to produce conflict in the future. Here are some possible sources of friction: Union relationships: Personnel and other areas could put the Legal Director and Mayor into the role of direct union negotiator. Is this added responsibility the role you want the Mayor to undertake, in light of his numerous other roles/responsibilities? Personnel: Will personnel issues end up in litigation? Bringing in the Attorney General at the end game time, without the Attorney General having provided legal advice along the route, could cause a number of problems, including protracted and costly litigation, which might have been avoided had the Attorney General handled the matter from the beginning Dispute Mediation: How are differences of opinion to be handled when there is a dispute between the Mayor/Legal Director and the Attorney General? Differences in legal strategy among lawyers are a regular occurrence. What is the resolution process? Will the Council become the mediator? Will politics inevitably be inserted into the dispute and with what result?

7 Page 7 of 7 Attorney Morale: There is a proud tradition attached to the D.C. Office of the Attorney General, which is essentially viewed as the law firm for the city. Re-establishing agency counsel removes lawyers from the office, resulting in a loss of expertise and collaborative effort. This is not a morale booster overall for the Attorney General s staff. Further, the Office of the Attorney General, the chief legal officer for the District, should be responsible for training all lawyers, which helps to ensure consistency in legal policy across agencies and is costeffective. Centralizing the training aspect in the Mayor's Office seems unnecessary and detracts from the Mayor's role in setting policy direction for agency officials. 4. Conclusion The D.C. voters decision to elect an Attorney General, rather than to continue with the Mayor s appointment, places a high premium on independence. Moving the key functions of an Attorney General s work back under the umbrella of the Mayor seems to go in the opposite direction. Undoing the existing structure now would seem to impact and encroach upon the independence that the voters have asked for. Instead, the Attorney General needs to have the existing tools and authority to focus on providing the highest quality legal advice to the Mayor, to the agencies, and to the residents of the District. Thank you for taking the time to consider these very important issues.