June 27, 2013

SERIOUS DYSFUNCTION. Unnecessary conflicts. Stalemate and paralysis. Those are predictions from former D.C. mayor Anthony A. Williams (D) and others who have had experience with the city’s executive branch of what will happen if proper steps aren’t taken in implementing the District’s move to an elected attorney general. Hopefully the D.C. Council will take these warnings to heart and enact legislation to let the mayor do his or her job but not undermine the authority of the attorney general.

A May 3 letter to the D.C. Council signed by Mr. Williams, former city administrator Michael C. Rodgers and three othersurges support of legislation submitted by Mayor Vincent C. Gray (D) that would refashion the attorney general’s office when it becomes an elected position in 2015. The proposal, crafted by Attorney General Irvin B. Nathan, maintains the office as the District’s legal authority and chief litigator. But lawyers and staff in the general counsel offices for executive agencies, who report to the attorney general now, would shift to mayoral control. Their work would be coordinated by a mayor’s office of legal counsel.

“No person, and especially not a lawyer who owes an ethical duty of undivided loyalty to the client, can serve two masters,” the Williams letter says. There is no question that lawyers hired, fired and directed in their daily activities by an independently elected attorney general (who may have a political agenda at odds with the mayor) would weaken the mayor’s ability to carry out policies for which the mayor is accountable to the electorate.

Opponents of the Nathan proposal fear it will lead to inefficiencies in legal representation. They point to past problems when agency counsel reported to the departments. D.C. Council member Tommy Wells (D-Ward 6), chair of the committee with oversight, hopes to act as early as Friday on a bill that would keep lawyers reporting to the attorney general while allowing for some expansion of counsel to the mayor.

Many states with elected attorneys general (including California and New York) successfully use the system advocated by Mr. Gray. Mr. Nathan, who doesn’t plan to run for the office, conducted a thoughtful review that took into account the structure’s success on the federal level. If the fear is that agency counsel will not follow the legal opinions of the attorney general, there are ways to ensure compliance. For example, Mr. Nathan told us, the attorney general could refuse to defend in court actions of an agency that disregards his advice, or the chief financial officer could cut off funds to the agency for noncompliance.

We have noted before the irresponsible way the council acted out of pique toward then-mayor Adrian M. Fenty (D) in 2010 to engineer a change with little thought to consequences. Time is running out before next year’s elections, so we urge passage of a proposal that allows for a strong elected attorney general but doesn’t weaken future mayors.