There is an interesting debate taking place in the District of Columbia about the Office of the Attorney General of the District of Columbia and whether the AG should be elected or appointed. The discussion inevitably dovetails, of course, into a general discussion of the role of the D.C. Attorney General in the City government.
In each state or jurisdiction with a false claims act, the Office of the Attorney General is charged with supervising the enforcement of the statute. To my knowledge, no other state is currently hashing out this old argument about elected vs. appointed AGs, so I thought it would prove of interest to readers.
But first things first. From 1902 until 2004, the D.C. Attorney General was called the Office of the Corporation Counsel, or “OCC” for short. The change came about in 2004 when then-Mayor Anthony Williams signed an order renaming the “Office of the Corporation Counsel for the District of Columbia” to “the Office of the Attorney General for the District of Columbia.”
The powers and duties of the O.C.C./OAG are similar to those of the Attorneys General of the several states, and the change was literally nothing more than the name. The official reason given by Mayor Williams was that re-naming the position would assist D.C. in its quest to become a state; a discussion of that complex and bizarre topic is (thankfully) beyond the scope of this blog.
In any event, from the inception of the office in 1902 right up through today, the OCC or D.C.AG has been appointed by the Mayor of the District rather than elected by a popular vote. Although the vast majority of the states — to be exact, 43 states out of 50 — divide the power of the executive branch by making the Attorney General an elected position, that is not the only way to do it. Five states — Alaska, Hawaii, New Hampshire, New Jersey, and Wyoming — have AGs appointed by the governor. Maine and Tennessee use different methods altogether — in Maine, the Attorney General is selected by secret ballot of the legislature and in Tennessee, the state AG is appointed by the state Supreme Court.
Fast forward to 2010, which found the D.C. City Counsel passing legislation to make the D.C. OAG an elected, instead of an appointed, position. Just like in 47 out of the 50 states, the plan was for the D.C. Attorney General to campaign for city-wide election by popular vote. That decision by the D.C. City Council was then ratified by a majority of the residents of the District a few months later in a popular referendum, and a date in November of 2014 was set for an election. A date in January of 2015 was set for the first-ever elected Attorney General of the District of Columbia to take office.
And then everything went south, casting the whole notion of the elected AG into question.
The first problem is that no one is interested in the job. Literally. As of today (July 23, 2013) there are exactly zero candidates running for the job. I’m not certain, but I think this could be the very first time that the District of Columbia gave an election and no one came….
Things have gotten so bad that the University of the District of Columbia’s Law School is holding forums to try to recruit candidates, according to the Loose Lips column in the Washington City Paper.
Here is what I find most interesting of all — Peter Nickles (whose less than stellar performance in the job a few years ago is, according to Loose Lips, the real reason for the position being changed to an elected one in the first place) has been among those trying to recruit a “lawyer’s lawyer” to run for the office. He is afraid, it appears, that a “politician lawyer” will be elected to the post instead of a lawyer’s lawyer.
Mr. Nickles is of course dead-right about that. There is no question that whoever gets elected will be a politician lawyer and not a lawyer’s lawyer.
But, if having a lawyer’s lawyer in the post of DC AG is the ultimate goal, I am not sure the change to an elected AG is what the District wants at all. In fact, it seems to me that D.C. is has at times enjoyed a caliber of lawyering in that position that is far superior, on paper, to any state with which I am familiar.
Why do I say that? Because although for the last umpteen years the OCC or OAG has been appointed by the Mayor, many of the individuals to occupy the position have in fact been “lawyer’s lawyers.” Among those that come to mind (without thinking too hard) are Charles F.C. Ruff and John Payton.
Although there is much to be said in favor of an Attorney General elected by a popular vote, if your goal is to fill the position with a “lawyer’s lawyer” you had better keep looking. That is for many reasons, not the least of which is that popular elections turn the job of picking a lawyer’s lawyer over to the whims of the political process. Just look at the AG’s race in any state for evidence. In Virginia, we have had lawyer’s lawyers run for the office before — in the form of Steve Baril in 2005 and John Brownlee in 2009 — and both lost to lawyer-politicians.
Nickles assumes that it is better to have a lawyer’s lawyer in the post of chief legal officer, and while I think that all other things being equal it would be preferable to have a lawyer’s lawyer in the role, in Virginia (and other places) most of the politician-lawyers who get elected do a fine job. That is because first, there is most definitely a political component to the job of Attorney General, and some lawyer’s lawyers might be too cerebral too handle that aspect of the job. In fact, both of the lawyer-politicians to get elected recently in Virginia turned out to do a fine job.
One of the things to be said in favor of electing an Attorney General is that you don’t have an individual in that job who does nothing more than carry water for the Mayor (or for the Governor). On the other hand, some people worry about the ability of an elected Attorney General to properly prosecute cases of fraud on the government because such cases are sometimes (but not always) against the sorts of companies who contribute to state wide campaigns.
On the whole, if you ask me in my role as a qui tam lawyer who works with the AGs of numerous states whether I would rather have an elected AG or an appointed one, I am going to go with the elected position. To me, the risk of campaign donors influencing prosecutions is only enhanced if the AG is appointed by the Executive Branch, instead of being elected in his or her own right.
Stay tuned dear readers, more to follow….