Nathan had invoked his Virginia counterpart while discussing proposed legislation that would curb the powers of the District’s attorney general, a post due to change from an appointed position to an elective office. He suggested that an elected attorney general would need checks on his power to prevent him or her from trying to undermine the mayor for political purposes.
“Many of the nation’s current Governors are former state attorneys general and many current AGs aspire to higher office,” he said, according to a written copy of his testimony. “Indeed, one only need to look at our neighbor in Virginia to see that an elected attorney general seeking to become the jurisdiction’s Chief Executive may take steps to advance his or her policy and political agenda that can be inconsistent with the policy preferences of the Governor and his appointees. Thus, for example, Attorney General Ken Cucinelli [sic] recently sought to overrule an order by the state board’s Department of Health concerning women’s health issues.”
Nathan was referring to new, hospital-style building codes that Virginia is in the process of applying to abortion clinics. Virginia’s Board of Health voted in June to exempt existing clinics from the new standards, but reversed itself in September after Cuccinelli warned that they lacked authority to grandfather the clinics. If board members did not heed his advice, he said that his office might not represent them in any resulting litigation and that they could be personally liable for legal fees.
Cuccinelli did not technically “overrule” the board. Nor was his action contrary to the wishes of Gov. Robert F. McDonnell (R), who is expected to sign the abortion clinic regulations that the board finalized Friday. Even so, abortion-rights activists called Cuccinelli’s actions heavy handed and ideologically motivated.
But Troy took issue with the idea that Cuccinelli had acted in a partisan way with regard to clinic regulations, or on another high-profile matter: a transportation funding overhaul that passed the legislature this year. Cuccinelli, who called the $1.4 billion-a year transportation bill a “massive tax increase,” said the way it raised regional road funds was unconstitutional. But he also advised McDonnell, who supported the plan, how to amend the legislation to resolve those problems, Troy noted.
“Though he opined that the structure for the new [transportation] taxes violated the Virginia Constitution, he did not stop there but went on and fulfilled his role as legal advisor [by] explaining how the new taxes — which he did not support — could be validly implemented,” Troy wrote. “He understood and recognized his role as an independent legal advisor, not as a policy maker.”
Troy said the same was true of Cuccinelli’s actions in the clinic matter, arguing that the attorney general rightly advised the board that the General Assembly had not provided a provision for grandfathering.
Asked in an interview why he had decided to come to Cuccinelli’s defense, Troy said, “Even though I’m not of the same party as he, I don’t think unfair shots should go unanswered.”
Nathan’s office did not immediately respond to a request for comment.