SO ANXIOUS were D.C. Council members in 2010 to get back at then-mayor Adrian M. Fenty (D) and his much-maligned attorney general, Peter J. Nickles, that they rushed through emergency legislation for a referendum stripping the mayor of the power to appoint the attorney general. No heed was given to concerns about how changing to an elected attorney general might impinge on the executive’s ability to govern or what it might cost taxpayers. Now the chickens have come home to roost as officials contemplate a transition to the new office and are confronted with the realities of their ill-advised decision.
With elections set next year for the first-elected attorney general to take office in 2015, Mayor Vincent C. Gray (D) has submitted legislation that would dramatically reduce the powers of the office. The proposal, fashioned by Attorney General Irvin B. Nathan from recommendations of a task force, would strip the attorney general’s office of lawyers and staff who serve as counsel to agencies in the executive branch. A new office of mayor’s legal counsel would be created, and the office’s director would coordinate, but not supervise, the work of the 140 staffers now assigned to individual agencies.
The reasoning for this, Mr. Nathan testified last month before the council’s judiciary committee, is to safeguard the mayor’s ability to effectively implement policy. An independently elected attorney general may not share the mayor’s goals and might seek to undermine them. “Historically,” he pointed out, “the appointed attorney general has been an important part of the mayor’s team and has worked cooperatively with it.”
Indeed, we said much the same thing when we urged the council — then chaired by, yes, Mr. Gray — not to allow animus toward Mr. Nickles to result in bad law. Only Jack Evans (D-Ward 2) grasped the implications of the change and voted no; the rest said it was important to make the office independent and follow the lead of 43 states with elected attorneys general.
Voters went along, and the question now is whether the changes proposed by the mayor constitute an undermining of the people’s will. Opponents, including Walter Smith of the DC Appleseed Center for Law and Justice and former attorney general Robert J. Spagnoletti (whom Mr. Gray appointed to head the city’s ethics board), think so. They provided thoughtful testimony about how stripping the attorney general’s office of many of its current duties could produce a bifurcated approach marked by inconsistencies and inefficiencies in the District’s legal representation. Mr. Smith detailed the District’s sorry history when agencies controlled their own legal advice.
But the concerns raised by Mr. Nathan cannot easily be dismissed; his recommendations are modeled after those used on the federal level and in some states. Future administrations should not be crippled by the failure of past councils to do their homework, so we hope the council finally gives thoughtful consideration to this issue.