D.C. Council fights over attorney general’s duties, weighs election delay

In 2010, more than 90,000 District residents voted to start electing the city’s attorney general, making an office that has long been appointed by the mayor directly accountable to them.

Today, with less than eight months until the District’s first attorney general race, it remains far from certain what precisely an elected attorney general’s duties will be, how he or she will go about the job, and, crucially, who, if anyone, will emerge to seek the office.

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The uncertainty has several members of the D.C. Council, which voted 11 to 1 to authorize the 2010 referendum, battling over the office’s responsibilities and openly pondering whether to delay the election, perhaps indefinitely.

“I regret few votes I’ve taken down here, but this might be one of them,” said Muriel Bowser (D-Ward 4), who supported the referendum and now thinks a delay is justified.

The role of the elected attorney general carries ramifications that reach into every tentacle of District government. The office’s 350 lawyers handle nearly every aspect of the city’s legal business, including official advice, civil litigation, regulation writing, ­drunken-driving prosecutions and fraud investigations.

But D.C. leaders disagree over whether the elected attorney general should control the full scope of the city’s legal apparatus. Lawyers working in D.C. agencies report to the attorney general, who, in turn, reports to the mayor, a system intended to maintain consistency in the city’s legal work.

Mayor Vincent C. Gray (D) and his appointed attorney general, Irvin B. Nathan, are backing legislation that would have those agency lawyers — about 150 of the office’s 350 — report directly to the mayor.

The measure is necessary, Nathan said in an interview, to prevent an attorney general — one perhaps with his or her eye on the mayoralty — from trying to “sabotage” the sitting mayor’s priorities.

“I believe there is a serious ethical question of whether a lawyer can serve two masters,” he said.

But D.C. Council members who backed the referendum and other advocates say that pulling more than a third of the city’s lawyers from the attorney general’s chain of command undercuts the intent of having an independently elected legal officer.

“We need another check and balance,” said Tommy Wells (D-Ward 6), chairman of the council’s Judiciary Committee, who unsuccessfully moved last week to modify the Gray-Nathan legislation, citing the need to “stem the embarrassments of incompetence, corruption and graft.”

The members of Wells’s committee voted Wednesday to have agency lawyers report to the mayor, and the matter is likely to remain unsettled until a final council vote in September.

Meanwhile, the city’s first attorney general race is missing a key ingredient: candidates. None have launched a campaign or even flirted publicly with the notion despite ample behind-the-scenes recruiting — including from Nathan and council members. That’s partly because of uncertainty over the scope of the job, some lawyers say.

“No one wants to run for an office when they don’t know what they’re going to be doing,” said David L. Goldblatt, a lawyer who interacts frequently with the District government on real estate and economic development matters.

The lack of candidate interest even inspired a forum last month at the University of the District of Columbia’s law school titled “So You Want to Be D.C.’s Attorney General?

The panel discussion featured Nathan alongside predecessors Robert J. Spagnoletti and Peter J. Nickles. They didn’t agree wholeheartedly on much, except to express hope that the job would attract a “lawyer’s lawyer” — a well-respected, experienced lawyer who commands the respect of the bar, the courts and the public — rather than, as Nathan put it in an interview, a “hotshot” with eyes on the mayoralty.

Walter Smith, executive director of D.C. Appleseed, a nonprofit policy group that co-hosted the event, acknowledged that the unrest “is not helpful in encouraging the best people to run.”

But that is far from the only factor tamping down interest. The $190,000 salary is not much more than a first-year associate can expect to earn at a white-shoe Washington firm.

Frederick D. Cooke Jr., who served as the city’s top lawyer in the late 1980s, said he considers the post a “great job” but a hard sell for a private-sector veteran.

“It’s a lot to ask of somebody who is on the upswing, someone who is in their prime earning years, to step out of that,” he said.

The prospect of fundraising and campaigning is another significant turnoff for lawyers. Several observers predicted it will be harder to recruit top-echelon lawyers like Nathan, a former Arnold and Porter litigation partner; Nickles, who returned to Covington and Burling after his stint under Mayor Adrian M. Fenty (D); or the late John A. Payton, who left Wilmer, Cutler and Pickering in 1991 to serve under Mayor Sharon Pratt (D) and went on to lead the NAACP Legal Defense Fund.

Tom Williamson, senior counsel at Covington and a past president of the D.C. Bar, acknowledged he’d been recently approached by several people about the job but had demurred.

“The fundraising for this kind of job raises the question: How would this influence your judgment representing the District?” Williamson said. By making the office elected, Williamson said, “I think you’ve reduced the pool of likely candidates.”

That concern — aired in 2010, when poor relations with Nickles had most council members willing to rethink the attorney general’s role — has, among others, prompted the second thoughts on the council. Jack Evans (D-Ward 2) recently asked city lawyers for legal opinions on whether the election could be delayed.

“This is a bad road we’re going down too quickly,” he said during a Wednesday council meeting.

Backers are resolute. Council Chairman Phil Mendelson (D), who was the main proponent of the referendum, said he doubts a delay would be legal. Smith said the council “has an obligation” to follow through on the voters’ will.

“I tend to think there will be a candidate who will emerge reluctantly,” Smith added. “I think that may happen. I hope that may happen. But I don’t know. Some people thought we’d have a lot of candidates by now.”

 
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