Councilmember Tommy Wells, Chairperson Committee on the Judiciary and Public Safety

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1 C O U N C I L O F T H E D I S T R I C T O F C O L U M B I A C O M M I T T E E O N T H E J U D I C I A R Y A N D P U B L I C S A F E T Y C O M M I T T E E R E P O R T 1350 Pennsylvania Avenue, NW, Washington, DC TO: FROM: All Councilmembers Councilmember Tommy Wells, Chairperson Committee on the Judiciary and Public Safety DATE: June 28, 2013 SUBJECT: Report on Bill , the Elected Attorney General Implementation Amendment Act of 2013 The Committee on the Judiciary and Public Safety, to which Bill , the Elected Attorney General Implementation and Legal Service Establishment Amendment Act of 2013 (now renamed the Elected Attorney General Implementation Amendment Act of 2013 ) was referred, reports favorably thereon with considerable amendments, and recommends approval by the Council. CONTENTS I. Background And Need...1 II. Legislative Chronology...11 III. Position Of The Executive...12 IV. Comments Of Advisory Neighborhood Commissions...13 V. Summary Of Testimony...13 VI. Impact On Existing Law...16 VII. Fiscal Impact...17 VIII. Section-By-Section Analysis...17 IX. Committee Action...17 X. Attachments...18 I. B A C K G R O U N D A N D N E E D Bill , the Elected Attorney General Implementation and Legal Service Establishment Amendment Act of 2013 was introduced on February 19, 2013 by Chairman Mendelson, on behalf of the Mayor. On March 26, 2013, the Committee held a public hearing on the bill. The testimony provided at the hearing, as well as other written statements, are summarized below in section V. In 2010, the Council adopted the Attorney General for the District of Columbia Clarification and Elected Term Amendment Act of The Act codified the Attorney General s obligation to serve the public interest; it also proposed a Charter amendment to make 1 D.C. LAW , codified as D.C. CODE (2010), amended by D.C. LAW A, codified as D.C. CODE (2011) (hereinafter 2010 Act ).

2 DRAFT Report on Bill Page 2 of 18 the Attorney General elected, rather than appointed by the Mayor. 2 In the 2010 general election, District residents ratified this Charter amendment by a 3-to-1 margin. 3 In April 2014, the first nominees for Attorney General will be on the primary ballot, and the first elected Attorney General will take office in January On January 12, 2013, more than two years after the effective date of the 2010 Act and the Charter Amendment, the Mayor transmitted Bill to the Council. In the Mayor s transmittal letter, he stated that current Attorney General Irvin Nathan and the OAG staff had been studying the practical consequences of this new system of divided authority, where both the Mayor and the Attorney General will be elected, neither will be subordinate to the other, and both will serve in the Executive Branch. 4 As a result of the evaluation, he believed it would be best, and in the Mayor's interest, that several significant changes are needed to ensure the best prospects for long-term success of this new arrangement for both the Office of the Mayor and the subordinate agencies and for the OAG. The bill, as introduced, would do several things: 1. Agency Counsel. The bill would transfer control of agency counsel from the OAG to their client agencies, thereby eliminating the OAG s current supervisory and coordinating role over these attorneys. The agency counsels would become subordinate to the agency directors and serve at their pleasure. 2. Mayor s Office of Legal Counsel (MOLC). The bill would establish this new office, with a Director who would not supervise the agency counsel, but instead would coordinate training and interagency matters. All attorneys employed by the MOLC would also be outside the OAG s supervisory authority; they would report instead to the office Director, then the Mayor. 3. Child Support Services Division (CSSD). The bill would transfer the CSSD from OAG to the Department of Human Services. The Committee appreciates the efforts of the current Attorney General to develop a proposal for the transition to an elected attorney general, but the Committee cannot support Bill as proposed. While it may be well intentioned, Bill as proposed would return legal services in the District government to a system we know by experience to be ineffective, inefficient and detrimental to successful legal outcomes on behalf of the District of Columbia. 5 In a bifurcated system, where agency counsel report to the agency director rather than the Attorney General, the independent voice pointing out pitfalls of law and ethics will be effectively eliminated. Removing agency counsels ability to provide sound legal advice without fear of retribution will do nothing to stem the embarrassments of incompetence, corruption, and graft 2 D.C. LAW A 3 Nov election results, online at 4 Transmittal letter, dated January 12, 2013; see Attachments. 5 Testimony of Shana Frost, Acting President, AFGE Local 1403 before Comm. On the Judiciary and Public Safety, 20 th Sess., March 26, 2013 at p. 1.

3 DRAFT Report on Bill Page 3 of 18 the District government continues to suffer. The current structure agency counsels reporting to the Attorney General, not the Mayor ensures there is an independent voice focused on what the law requires, not what the Mayor wishes. Furthermore, none of the changes proposed are necessary to transition from an appointed to an elected Attorney General. The majority of the changes sought in this bill by the Mayor and the OAG are policy decisions, and are not necessary, as has been suggested, to transition to an elected office. The only changes needed for that transition are included in Title II of the Committee Print, entitled Conforming Amendments. At the start of the March 26, 2013 public hearing on Bill , Chairperson Wells stated that there must be a very strong rationale to justify the significant restructuring changes proposed in the bill. The Committee does not believe that the Executive s testimony, as provided by Mr. Nathan, met that threshold. Committee reasoning Mr. Nathan s testimony stated that Bill as proposed would further the principle that the Mayor should retain control over and accountability to the electorate for programmatic, budget and policy choices for the District government. 6 His testimony stressed the importance of having agency counsel in the Mayor s reporting line in order to help: minimize potential conflicts between the Mayor and the elected Attorney General in the District over agenda, policies, or priorities, which could impact programs initiated by the Mayor and subordinate agency directors. 7 This principle premise mischaracterizes the Attorney General s role in the District of Columbia; it also assumes that any elected AG will want to be Mayor and therefore will oppose the sitting Mayor at every turn. While conflict may certainly arise between an elected Attorney General and the Mayor, the Committee cannot support a structural change that would negatively impact the consistency and independence of the District s legal services. In proposing a new model for the Attorney General s office, one that was not contemplated by voters during the 2010 referendum, the Executive argues that certain changes are necessary to ensure that the Office of the Attorney General and the Mayor can continue to work well together in the best interests of residents. The most drastic change proposed in the bill, and consequently the most controversial, involves the transfer of agency general counsel to within the mayoral reporting line. To support this change the Attorney General testified as to several perceived problems that would arise from failure to modify the structure under the District s existing law. The Committee, having thoroughly considered the concerns identified by the Attorney General, as well having reviewed the testimony of others that rebuts these concerns, is not convinced that the model proposed by the Executive is the right direction for the District. 6 Submitted statement of Mr. Nathan on behalf of the Executive, Comm. on the Judiciary and Public Safety, p.3. (D.C. 2013). (hereinafter Nathan letter. ) 7 Nathan letter at 4.

4 DRAFT Report on Bill Page 4 of 18 Chief among the Attorney General s concerns is that the elected Attorney General will have an agenda and priorities that are perhaps different from the Mayor or from the many agency directors. To support this point, Mr. Nathan notes that many state Attorneys General aspire to run for Governor. A consequence of this, it is argued, is that an elected Attorney General could, through direction of agency general counsel, subvert the Mayor s policy agenda in lieu of his or her own political or policy agenda. The Committee believes this characterization of disagreements between the Attorney General and the Mayor as always political ignores one of the key concepts behind creation of an elected Attorney General: that an Attorney General who exercises independent judgment from the Mayor and is free to make such disagreement known will be beneficial to the District. Aligning the agency general counsel as the Executive suggests does not accomplish righting the perceived wrong identified here. If the goal is to eliminate partisanship in the delivery of legal advice to agency heads, placing agency general counsel under the Mayor as opposed to the Attorney General does little other than replace one partisan for another. In contrast, the goal of the legislation establishing an elected Attorney General was the preservation of independent legal review; the Committee believes this goal is best served by maintaining the structure of the Office of the Attorney General as contemplated in the 2010 legislation. To do otherwise, as some have noted, would institutionalize the very problems the change to an elected chief legal officer sought to eliminate. That an elected Attorney General may seek higher office is also not a persuasive argument for gutting the office as the Executive proposes. The presumed dangers identified in Mr. Nathan s testimony most notably his reference to the current Virginia Attorney General s campaign for Governor of that state are overstated. Indeed, while some examples may suggest problems stemming from an Attorney General seeking higher office, there are also examples of strong attorneys general who have become strong governors. Placing agency general counsel under the direction of the mayor will not impact this one way or another. Another primary argument of the Executive in favor of the shift in agency counsel is the threat that overt conflict or bad faith will result in an elected Attorney General diverting agency counsel from performing duties beneficial to the Mayor and the agencies or diverting other legal resources needed by the Executive. First, the Attorney General elected or otherwise has a duty as the chief legal officer of the District of Columbia to perform the legal functions of that office in a manner that is most beneficial to residents. Defending the legal interests of the public is more than just a job duty, it is an obligation. This obligation means that the elected Attorney General cannot be cavalier with the legal resources under his or her helm, but must represent the public interest because of that position s duty to the public in a manner that puts the District above all else. Other perceived conflicts identified by Mr. Nathan in his testimony ignore that the elected Attorney General should be expected to pursue certain objectives in the delivery of legal services to the District. In fact, voters will elect an Attorney General with that expectation in mind, and the elected candidate will be held to those objectives during his or her term both by the voters and by the Council as it pursues its oversight function. The Committee believes the proposal of dividing the District s legal force, as advocated by the Mayor and the Attorney General, fails to understand the purposes underlying the 2010

5 DRAFT Report on Bill Page 5 of 18 legislation that created the elected Attorney General fails to best serve District residents in the delivery of legal services. As former Attorney General Robert Spagnoletti noted in his testimony to the Committee on March 26, 2013, this proposal to create instability inviting opportunity for inconsistent legal opinions from the Office of the Attorney General and the agency general counsels; instability in the Office of the Attorney General s ability to advise agencies on how to avoid, or defend against, litigation; and instability in the workforce as inconsistency in the salaries and working conditions of the many lawyers in District government, and the unrest caused by changeover in employers returns legal services to what it was before the workforce was unified in In contrast, the Committee believes that the current structure of the Office of the Attorney General, even as we transition to an elected office, will best serve the District through the preservation of a unified legal voice, the preservation of a unified legal review, and the preservation of independence. 1. Preservation of the unified legal voice. Bill as introduced would return the District s legal services to the divided system that the Council previously rejected as unworkable. Over the past 15 years, the Council has enacted legislation to strengthen the government s legal services by consolidating all attorneys under the Office of the Attorney General. In 1999, the Council passed the Legal Services Establishment Act of 1998 (the 1998 Act ). 8 The 1998 Act gave the Corporation Counsel (now known as the Attorney General), supervisory authority over the District s agency attorneys. Prior to the change, agency counsel were supervised by the agencies and were separate from the Corporation Counsel. 9 The bifurcated system resulted in (1) inconsistent advice; (2) inconsistent quality of lawyering; (3) inconsistent lawyer supervision and pay; and (4) poor coordination between the agencies and the Office of Corporation Counsel in matters related to litigation. 10 The 1998 Act was proposed by then-mayor Marion Barry, Jr. In his transmittal letter, Mayor Barry stated his strong support for the bill, expressing his position that: "[t]he government generally should speak on legal issues with one voice - through the Office of Corporation Counsel - and should have one person - the Corporation Counsel - ultimately responsible for what the government s legal position is, after consultation with the affected department or agency." 11 8 D.C. LAW The bill also required other elements to strengthen the legal corps, including competitive compensation and continuing education. 10 Testimony of Robert J. Spagnoletti before the Comm. on the Judiciary and Public Safety, Hearing on Bill , March 26, 2013, p. 1 (D.C. 2013). (hereinafter Spagnoletti testimony). 11 Comm. on Judiciary and Public Safety, B Committee report on Bill , p. 10 (D.C. 2013) and in Attachment A (available online at (Last viewed June 27, 2013) (hereinafter B report ).

6 DRAFT Report on Bill Page 6 of 18 At that time, both the OAG and the agency counsels were in the Mayoral reporting line, yet the mayor recognized, and the Committee concurred, that there was significant value to having nearly all government attorneys consolidated under the OAG. The benefit of a singular legal voice would allow for consistency in the legal positions taken by the government. Judge John Ferren, then Corporation Counsel, testified to the critical nature of one legal voice. He cited instances where the lack of coordination between agency attorneys and the Office of the Corporation Counsel had been detrimental to the District, including with the preparation and defense of lawsuits. 12 At the hearing on the 1998 Act, he gave additional examples of the failure of legal advice in the agencies and testified that this type of problem should not have happened - and would not have happened - if the agency counsel responsible for these transactions had been integrated with the Office of the Corporation Counsel. 13 When Judge Ferren described these failures as detrimental to the District, he placed the blame squarely on a bifurcated legal services. This was 1998, when all the parties involved the Attorney General, the agency counsels, and the agency heads were all in the Mayor s reporting line. That Mayoral reporting line did not remedy the lack of cooperation, coordination, and consistency. In 1998, the Committee was persuaded by the evidence presented by the Corporation Counsel and by common sense that the bifurcated structure was not in the best interest of the District government. This Committee concurs. The Council reiterated its commitment to unified legal services in 2005, when the Council passed the Legal Service Amendment Act of 2005, ( 2005 Act ) as part of the Budget Support Act for fiscal year The act, which was proposed by then Mayor Anthony Williams as part of the budget, transferred the FTEs and budget authority for agency lawyers to OAG, thereby making all attorneys working in subordinate agencies employees of the OAG. The 2005 Act stated that these attorneys shall act under the direction, supervision, and control of the Attorney General. 15 The Committee report stated the new structure would resemble that currently in place for the Chief Financial Officer. The report also stated that the clear supervisory authority of the Attorney General was needed to alleviate the continuing lack of communication and coordination between OAG and agency counsel and that certain functions, such as drafting legislation and rulemaking, should be centralized to ensure a consistent, highquality work product. With the passing of the 2005 Act, for the first time, the District spoke with one unified voice on legal matters. 16 And since that time, as former Attorney General Robert J. Spagnoletti testified, the Attorney General has been living up to the command in the Home Rule Act that he conduct all of the law business of the District of Columbia. 17 Despite this clear legislative history documenting the detrimental effect of a bifurcated system, the Mayor s proposal seeks to reverse the progress of a consolidated legal service and 12 B report at p B report. 14 Sec. D.C. Law 16-33, sec (Fiscal Year 2006 Budget Support Act of 2005) (October 20, 2005). 15 Id. at section 3012(e) 16 Spagnoletti testimony at Id.

7 DRAFT Report on Bill Page 7 of 18 return the District to that dysfunctional bifurcated system. Furthermore, Mr. Nathan, in arguing for the Mayor s position, testified that while the current structure of subordinate agency counsels reporting to the AG has largely been effective, such effectiveness is due primarily to the fact that the agency directors and the Attorney General report to a common ultimate authority the Mayor. 18 That contention directly contradicts the situation that gave rise to the consolidated legal service. As Judge Ferren described, a bifurcated system immaterial of who the ultimate authorities may be can result in very serious problems with litigation, contracting and procurement, and federal compliance. It is not difficult to imagine what scenarios would play out if the agency counsel would return to reporting to the Mayor instead of the independent Attorney General. While Mr. Nathan relies on hypotheticals to illustrate what could go wrong with agency counsels under an elected Attorney General instead of the Mayor, the Committee needs only to point to The Committee also notes that under the bifurcated structure, attorneys in the OAG and attorneys in the agencies were treated differently, not only with regard to pay, but also in terms of training and support. Judge Ferran testified that a consolidated legal service would resolve these problems. Bill , as proposed, would remove the consolidation of compensation and training as well, placing those responsibilities on the Mayor s Office of Legal Counsel. Again, agency counsels would be without the professional development and other benefits implicit in a consolidated legal service. The Committee believes the Mayor s proposal to remove the OAG s authority for the agency counsels would return the District exactly to where it was before the 1998 and 2005 Acts. 19 As Mr. Spagnoletti stated so clearly at the March hearing, there is simply no reason to believe this bifurcated model will be any more successful in 2014 than it was in Without speaking with one legal voice, the government undermines the basis of public confidence in its competency Preservation of independent legal review. The Mayor s proposal in Bill wrongly assumes that an elected attorney general will abrogate the legal duties for which s/he was elected in order to thwart the Mayor s policy goals at every step. This is an extraordinarily cynical view that anticipates an unrealistically high level of conflict between the Attorney General and the Mayor. 18 Nathan letter at Furthermore, having agency counsel serve at the pleasure of the agency directors would lead to additional instability in staffing, with each new director likely replacing his or her senior staff, including the agency counsel. Such turnover will inevitably lead to a loss of experience and a lack of consistency two elements of the fractious pre-1998 system that led to reform. 20 Submitted statement of C. Raymond Marvin, former Assistant Attorney General of Ohio and Executive Director and General Counsel for the National Association of Attorneys General, and Betty Montgomery, former Attorney General of Ohio, Comm. on the Judiciary and Public Safety, April 8, 2013 (D.C. 2013). (hereinafter Marvin letter. )

8 DRAFT Report on Bill Page 8 of 18 Mr. Nathan s testimony reiterated that cynicism, stating that the degree of collaboration between the elected Attorney General and the Mayor will be uncertain the Mayor and Attorney General may or may not share information and may or may not have the same policy goals. 21 The Committee rejects this assertion; as the chief legal officer of the District, the Attorney General has, by statute, charge and conduct of all law business of the District. 22 As an attorney and member of the D.C. Bar, the Attorney General has a duty to uphold and defend the law. The idea that the Attorney General would manipulate the law to thwart the policy goals of the District is antithetical to the role and function of the office. To the extent that the Attorney General has legal policy goals, the electorate would expect that the Attorney General pursue these during his or her tenure. For example, a candidate elected under a platform of increasing or improving juvenile prosecutions, or of dedicating additional resources toward consumer protection, should be held to these promises. As the chief legal officer, such legal decisions belong with the Attorney General. The suggestion that conflict will be devastating to the operations of government is also, in the Committee s view, overly cynical. As with conflicts that arise between different elected officials and different branches of government, there is a need for the government as a whole to continue to work together to move the District forward. The independent, elected Attorney General is another level of checks and balances to the system. The move to an elected Attorney General does not change the duties as outlined by the law; it does, however, ensure that the Attorney General shall operate with independence to fulfill his or her obligation to the public interest. A key purpose of the 2010 Act and the referendum was to ensure that the Attorney General, and the attorneys who serve within the OAG, would be able to disagree with the Mayor when legal analysis so dictated. 23 As the Committee stated in its report on the 2010 Act, the Attorney General must be able, and in fact, is required, to say no to the Executive when the law or ethics so require. 24 The nature of independence in the provision of sound legal advice is that the attorney providing it is free to offer a legal opinion, which the recipient dislikes, without fear of reprisal. This independence was intended indeed expected to apply to the agency counsel as well as the Attorney General. The value of independent legal advice is clear: [such] advice will guide the agency to implement its policy choices in ways which comply with law or identify areas of legislative change or judicial refinement or define litigation risk... legal advice which is independent of the agency s policy chiefs is essential to effective government because it avoids unanticipated delay, controversy, exposure to liability an diversion of executive time and talent Nathan letter at D.C. CODE See, Comm. on the Judicary and Public Safety, Comm. Report on Bill 18-65, p. 7 (D.C. 2013). 24 Id. 25 Marvin letter at 1.

9 DRAFT Report on Bill Page 9 of 18 Equally as clear are the problems courted by the proposed bifurcated system. In addition to the aforementioned problems on consistency and cooperation, having agency counsels reporting directly to the agency director and serving at their pleasure can produce results that are the opposite of independent legal advice that the OAG s office might provide. 26 Yet, the executive s testimony repeatedly emphasized the importance of placing agency attorneys in the Mayor s reporting line. This would effectively remove the agency counsel s ability to provide truly independent advice in favor of being in lockstep with the Mayor, potentially sacrificing the rule of law in deference to proposals from the Mayor. The District is best served when the general counsels are free to tell agency heads that a particular policy direction may have legal complications or points out additional areas that may need legislative change to implement the desired policy. That s not determining policy, that s determining what might negatively impact the implementation of a policy and the residents of the District of Columbia without fear of retribution or undue influence. Mr. Anthony Troy, former Attorney General of the Commonwealth of Virginia, submitted a written statement on Bill Among his many points on the role of the Attorney General, he stated: Independent advice on legal issues does not equate to undermining policy decision. It equates to assurances that laws are being properly carried out, that preventive law is being practiced and that changes are left with and for the legislative process. 27 This is the critical role of the Attorney General and all the attorneys in the OAG, including those assigned to specific subordinate agencies. This level of independence has served the District well over the last 15 years and must be maintained. 3. Other issues of note. The Committee must note three other issues in the Mayor s proposed bill: Union issues: The OAG Attorney Union is comprised of all Series 905 attorneys employed by the OAG, including agency counsel. The impact of the Mayor s proposed change on the union structure is unclear. Would the group be split and be required to engage in collective bargaining with two authorities the Mayor and the Attorney General? Such a bifurcated system courts contention and creates unnecessary conflict between the Mayor and the Attorney General. The current structure enables the attorneys to operate as one collective bargaining unit; by preserving the current structure, the committee print removes these concerns. CSSD: Finally, the Committee must mention the proposed change to the Child Support Services Division (CSSD). During the government s testimony, Mr. Nathan s stated the move of CSSD to the Department of Human Services (DHS) is necessary because child support is a social service function and that it is ready to be housed again in a social services agency. 28 The bulk of 26 Testimony of Lynne Ross before Comm. on the Judiciary and Public Safety, p. 5 (D.C. 2013). 27 Written statement of Mr. Anthony Troy, Comm. on the Judicary and Public Safety, p.6. (D.C. 2013). 28 Nathan letter at 22.

10 DRAFT Report on Bill Page 10 of 18 CSSD s legal cases, including the establishment of child support orders and contempt motions, are heard in Superior Court. Much of the work involves preparing for litigation, litigating cases in order to establish paternity and child support orders, and enforcing court orders. The Committee notes that CSSD was moved from DHS in 1998 and has made significant strides in recent years under the OAG; but the Committee remains concerned that a move at this time could be seriously detrimental to its continued improvement. Testimony from a number of advocates who work with CSSD underscored this very real concern. 29 Before such a substantial move can be supported, a clear demonstration that the move would be in the best interests of the District s children. Scope of candidates: Bill , as introduced, would limit the role of the Attorney General to the chief litigator, rather than the chief legal officer responsible for all law business in the District. The Committee shares concerns raised at the hearing that this may narrow the scope of candidates who would be interested in running for Attorney General. While litigation is a key element of the District s legal business, other highly-qualified lawyers should not be discouraged from this public service. 4. Components necessary for transition from appointed to elected Attorney General. As mentioned above, none of the Mayor s proposed structural changes are required before the District elects its first Attorney General. Accordingly, the Committee has made significant amendments to the bill. The committee print includes the conforming amendments that are required for the implementation of an elected Attorney General: those related to the statutory regulation of elections and campaign finance. With regard to the regulation of elections, the committee print includes the Attorney General in: - Qualifications of candidates; - Petition requirements; - Process requirements in the event the elected official dies, resigns, or becomes unable to serve; - Recount procedures; - Limits on candidacy; and - Limits on honoraria and royalties. - Reporting requirements for the Director of Campaign Finance. For ethics and government accountability related to campaign finance, the committee print includes the Attorney General in the Director of Campaign Finance s biennial report; and in aggregate and individual exploratory campaign contribution limits. 29 See Appendix, written testimony of Karma Cottman, Executive Director, DC Coalition Against Domestic Violence; and written testimony of Stephanie Troyer, Legal Aid Society of the District of Columbia, Comm. on the Judicary and Public Safety. (D.C. 2013).

11 DRAFT Report on Bill Page 11 of 18 The only element of the Mayor s proposed Bill that remains is the establishment of the Mayor s Office of Legal Counsel (MOLC), though the Committee print substantially amends it. The Committee print establishes the office essentially as an expansion of the Mayor s general counsel. The MOLC would provide legal and policy advice and consultation to the Mayor, just as the Council has its own General Counsel. Conclusion: The Committee received testimony from both sides of the debate that stressed what other jurisdictions have done with agency counsel where there is an elected Attorney General. 30 While this information provides some indication of how things generally work elsewhere, the reality is that each state has adopted a practice that meets its needs. So must the District of Columbia. The clear history on the elimination of the bifurcated system and the creation of the unified legal service shows that the current system is essential to the effective functioning of the District government. No system, regardless the structure, can guarantee a well-intentioned elected official or a government without conflict. Some conflict is inherent in a system of checks and balances. Certainly some amount of tension is healthy and can stimulate discussion about how best to resolve a problem something both the executive and legislative branch can attest to in the daily operation of the District government. A good public official will respect the constructive tension between the elected Attorney General and the Mayor, just as they do the constructive tension between the Executive and the Council. The purpose of the referendum was to ensure that the Attorney General would be free to act in the best interest of the citizens of the District, regardless of who was Mayor. That same freedom must be present for agency counsel to ensure they fulfill the responsibilities of their job as legal advisors. Restructuring the entire legal services division of the government based on an expectation of the very worst possible scenario, would negatively impact the consistency and independence of the District s legal services. The Committee cannot support a proposal that effectively eliminates the independence of agency counsel while purporting to implement an independent Attorney General. Now, more than ever, the District government must guard against conflicts of interest and commit itself to the highest ethical standards. For all the reasons explained above, the Committee moves this bill as amended. II. L E G I S L A T I V E C H R O N O L O GY February 19, 2013 Bill , Elected Attorney General Implementation and Legal Service Establishment Amendment Act of 2013, is introduced by Chairman Mendelson, on behalf of the Mayor. 30 According to information provided by Mr. Nathan, of the 43 states with elected Attorney Generals: In 21 states. agency counsel generally do not report to the Attorney General ; of the other 22 states, in eight, the agency counsel report to the Attorney General, and in the remaining 14 states, some agency counsel report to the executive, some to the Attorney General. Despite Mr. Nathan s assertions to the contrary, there is no clear consensus. Each state adjusts its structure to its needs.

12 DRAFT Report on Bill Page 12 of 18 February 19, 2013 February 22, 2013 March 1, 2013 March 26, 2013 Bill is referred to the Committee on the Judiciary and Public Safety. Notice of Intent to act on Bill is published in the District of Columbia Register. Notice of a Public Hearing is published in the District of Columbia Register. The Committee on the Judiciary and Public Safety holds a public hearing on Bill June 28, 2013 The Committee on the Judiciary and Public Safety marks-up Bill I I I. P O S I T I O N O F T H E E X E C U T I V E The Committee received testimony from Attorney General Irvin B. Nathan. The Attorney General testified that he assembled an Office of the Attorney General Task Force to research this issue. The Task Force reviewed the history of the Office of the Attorney General and consulted with the National Association of Attorneys General, former state Attorneys General, other state officials, and national experts. The Task Force also researched the organizational structures in place in the states with a similarly divided executive, and conferred informally with numerous judges, representative stakeholders, the agency general counsels, and the Office of Attorney General lawyer and staff unions. 31 Based on the Task Force s findings, the Attorney General concluded and recommended to the Mayor that the divided executive branch can work in the District; the Mayor reviewed and adopted these recommendations. The Attorney General testified to the bill s key changes. As proposed, the bill transfers the subordinate agency counsels to the control of their agency heads appointed by the Mayor, thereby allowing these lawyers to remain in the chief executive reporting line after the elected Attorney General takes office. The bill also would establish the Mayor s Office of Legal Counsel. Lastly, the bill transfers the Office of Attorney General s Child Support Division to the Department of Human Services (DHS). The Attorney General testified that this transfer will make DHS the District s designated child support agency for federal law purposes. Ultimately, the Attorney General testified that adoption of this legislation as introduced would help ensure that the Mayor retains policy and budget control for the Executive, which making the Office of the Attorney General better mission-focused and more effective in fulfilling its set of legal duties for the District. 31 When the Committee requested review of the Task Force report, in order to better understand its research and decision-making process, the Attorney General declined to provide it, citing privilege.

13 DRAFT Report on Bill Page 13 of 18 IV. C O M M E N T S O F A D V I S O R Y NEI G H B O R H O O D C O M M I S S I O NS The Committee received no testimony or comments from any Advisory Neighborhood Commissioners. V. S U M M A R Y O F T E S T I M O N Y A N D S T A T E M E N T S The Committee on the Judiciary and Public Safety held a public hearing on Bill on Tuesday, March 26, The testimony summarized below is from that hearing. A copy of the testimony is attached to this report. Irvin B. Nathan, Attorney General. The Attorney General testified about the necessity of this legislation to effectively transition to an elected attorney general, as outlined in Section III. The Honorable Kathy Patterson, Former Councilmember, Ward 3. The Honorable Kathy Patterson testified that during her tenure as Chair of the Committee on Government Operations, the Committee reported out Bill , the Legal Service Establishment Act of 1998, which represented comprehensive reform of the legal services in the District. The legislation established a new legal service in the District, and took steps to ensure that members of the service would be paid comparably with federal government attorneys. The bill required continuing legal education and management training for supervising attorneys. She stated that Bill would essentially reverse much of the progress represented by the earlier legislation. Robert Spagnoletti, Former Attorney General. Mr. Spagnoletti testified that this bill as introduced represents a giant step backwards. He stated that the bill contains no qualifications for Director of the Mayor s Office of Legal Counsel, the proposed bifurcated system invites challenges by the union to different treatment of similarly situated attorneys, the Child Support Division should not be moved to the Department of Human Services, and the passage of this bill would narrow the scope of candidates interested in running for attorney general. Mr. Spagnoletti stated that the bill would return the District to a time when legal services were fractured and inefficient, when legal advice was inconsistent, and when the District s lawyers were treated unequally. Lynne Ross, Former Executive Director, National Association of Attorneys General. Ms. Ross testified that she has spent most of her career discussing similar types of issues with attorneys general of the states and jurisdictions, having spent much of the past 40 years working for the National Association of Attorneys General. She stated that she has several concerns about this bill. Ms. Ross testified that the bill would undermine the Attorney General s independence, anticipates an unrealistically high level of conflict between the Attorney General and the Mayor, and creates additional conflict between the Attorney General and the Mayor. She stated that the Attorney General needs to have the existing tools and authority to focus on providing the highest quality legal advice to the Mayor, agencies, and residents of the District. Walter Smith, Executive Director, Appleseed. Mr. Smith testified the bill as introduced is unsound for three reasons. He believes that it would directly undermine the purpose of having, and intent in transitioning to, an elected Attorney General who is accountable to the people and

14 DRAFT Report on Bill Page 14 of 18 independent of the Mayor; it would reverse the Council s longstanding efforts to strengthen, coordinate, and unify the District s legal operations; and the proposal is inconsistent with the approach adopted by the vast majority of other jurisdictions with elected attorneys general. Shana L. Frost, Acting President, AFGE Local Ms. Frost testified that the bill seeks to return to the fragmented organizational structure that this Committee previously found was not in the best interest of the District government by dividing the Legal Service between agency counsel who would report to the agency directors, and Office of the Attorney General lawyers who would report to the Attorney General. She stated further that the bill guts the authority of the Attorney General as the chief legal advisor of the District, and unnecessarily creates conflict with no clear path to resolution. Sabrina Brown, President, AFSCME Local Ms. Brown testified regarding the Office of the Attorney General s Child Support Services Division. She stated that there is continuous longstanding tension between management and her union. Ms. Brown thinks closer scrutiny of management practices would result in serious changes that would improve the office s overall accountability and productivity. Stephanie Troyer, Supervising Attorney, Legal Aid Society of the District of Columbia. Ms. Troyer testified in strong opposition of moving the Attorney General s Child Support Services Division to the Department of Human Services. She stated that the bill should not move forward because the substantial changes it proposes to the Office of the Attorney General and the Department of Human Services are not needed or required to implement the 2011 Elected Attorney General Charter Amendment. Further, Ms. Troyer testified that there has not been sufficient analysis to determine whether the transfer of the Child Support Services Division from the Office of the Attorney General to the Mayor s control is in the best interests of the District s children. Fred Cooke, Former Corporation Counsel. Mr. Cooke testified in support of the intentions of this legislation. He also spoke about his experience as corporation counsel. In addition to the testimony above, the following persons submitted statements for the record. A copy of the testimony is attached to this report. Betty Montgomery, Former Attorney General, Ohio and C. Raymond Marvin, Former Assistant Attorney General, Ohio. Ms. Montgomery and Mr. Marvin offered several ideas to consider during the Committee s deliberations of the legislation. They spoke about the notions of independence, once voice, consistency, and conflicting opinions. They urged the Council to reject any legislation that would curtail the authority and independence of the new position of the publicly elected Attorney General. Karma Cotton, Executive Director, DC Coalition Against Domestic Violence. Ms. Cotton spoke about the importance of the District s child support system. Her Coalition has concerns about potential disruption of the function and efficacy of the Child Support Services Division (CSSD) related to the proposed transfer from the Office of the Attorney General to the Department of Human Services (DHS). The Coalition is concerned about the integration of the

15 DRAFT Report on Bill Page 15 of 18 CSSD records system into the existing DHS IT infrastructure. Ms. Cotton testified that there should be a comprehensive, evidenced based analyses before such major changes to the District s child support system are carried out. Anthony F. Troy, Former Attorney General of the Commonwealth of Virginia. Mr. Troy stated that a key issue of the Committee is the proper role of the Attorney General with respect to agency counsel; who should hire them and who controls their activities the Attorney General or a newly created Mayor s Office of Legal Counsel (MOLC). He stated that the role of an Attorney General is that of a legal advisor, not that of a policy maker. Mr. Troy stated that setting up dueling advocates and embedded agency counsel is respectfully, the antithesis of the true role an Attorney General should be performing. James Sager, Support Specialist, Enforcement Unit. Mr. Sager stated that the Child Support Services Division (CSSD) has certain reservations concerning the CSSD Director. He stated that many support staff feel that the decline in productivity is a result of the agency restructure initiated by the Director, including the FY 2012 decline in establishment of new orders, as well as other situations Mr. Sager has mentioned in his submission. Supplemental testimony was received by the following: Katherine Somers and Jessica Retka, Columbus Community Legal Services, The Catholic University of America, Columbus School of Law. These persons suggested that the Council request that the Child Support Services Division (CSSD) provide a more comprehensive assessment of the potential impact on the delivery of child support services in the Department of Human Services rather than the Office of Attorney General. One of their concerns with the transfer is the potential effect of creating a negative public perception of utilizing child support services housed in the same agency that administers other welfare programs. Essentially, they think more analysis should be done on the experiences of other states in order to better understand the potential effects of the proposed move. Anthony A. Williams, Peter B. Edelman, Alan B. Morrison, Michael C. Rodgers, and Thomas M. Susman. These persons stated that based on their long and varied collective and individual experiences with the District government, they believe that unless future Mayors and the agency directors have complete confidence that agency counsel owe their undivided client loyalty to the agency and the Mayoral Administration, the executive branch may be unable to operate effectively to carry out the policies and programs for which the Mayor is accountable to the electorate. They urge the Council to move forward with the legislation as introduced to provide clarity and sufficient time for effective planning for the transition to a divided executive. Kathy Patterson, Lynne Ross, Walter Smith, and Robert Spagnoletti. These persons stated that the Attorney General wrongly assumes that an elected attorney general will significantly harm the public interest. They see no basis for the Attorney General s assumption that an Attorney General who disagrees with the Mayor will do so for political reasons and is likely to be wrong in doing so. Further, they stated that the proposed remedy for an elected attorney general is ill-conceived. They reason that the bill proposes to institutionalize the very problems that the change to an elected Attorney General sought to eliminate. They state that the

16 DRAFT Report on Bill Page 16 of 18 perceived problem would take a huge step backwards by overriding the progress the District has made in reforming and consolidating the delivery of legal services over the past 15 years, beginning with the 1998 legislation. It was also stated that the Attorney General s proposal is inconsistent with the Referendum, by weakening the Office s independence, reducing its stature within the government, and makes the District s legal business less accountable to voters. It was stated that the Attorney General mischaracterizes his proposal as a widely adopted model. They asserted that in reality, across the country, there is no one-size-fits-all rule, and different offices have developed in different ways to meet the particularized needs of each jurisdiction. Lastly, it was stated that the Attorney General has not provided a strong rationale for transferring the Child Support Services Division (CSSD) to the Department of Human Services. They take the view that before the Council takes the serious step of transferring the CSSD, more thought and justification for the transfer should be required. Attorney General Irvin B. Nathan. The Attorney General s supplemental testimony responded to the additional submission of Walter Smith and colleagues ( Smith Testimony ). He stated that the Smith testimony misleadingly asserts that his proposal would take the District back to the days before the Legal Service Establishment Act of The Attorney General stated that his proposal is forward-looking and it addresses the issues that the District is facing for the first time by proposing changes needed to ensure the success of the divided executive branch for the long term. The Attorney General stated that the Smith Testimony inaccurately describes this trend in the rest of the country. He stated that his proposal substantially tracks the approach taken in most of the elected Attorney General States and the approach long used in the federal government. The Attorney General stated that the Smith Testimony wrongly, and without evidence, asserts that his proposed agency counsel reform is in conflict with the 2010 referendum creating an elected Attorney General for the District. In his view, the electorate did not vote to weaken the Mayor or make it harder for a future Mayor and his or her appointees to govern. The Attorney General stated that the Smith Testimony wrongly says that the proposal would weaken the OAG. Lastly, the Attorney General stated that the Smith Testimony misapprehends the discussion about whether to transfer the Child Support Services Division (CSSD) from the Office of the Attorney General to the Department of Human Services. He stated that it is important for CSSD to report to the Mayor, as do all of the programmatic operations of the government. VI. I M P A C T O N E X I S T I N G L AW Bill would amend The District of Columbia Comprehensive Merit Personnel Act of 1978 by adding a new section, 851a, creating and defining the Mayor s Office of Legal Counsel. It would impact the Attorney General for the District of Columbia Clarification and Elected Term Amendment Act of 2009 by giving the new Office of Legal Counsel a supervisory role over any special counsel appointed pursuant to section 109 of that act. Bill also impacts The District of Columbia Election Code of 1955 by amending the law in order to make it conform to the requirements of section 435 of The District of Columbia Home Rule Act. The bill accomplishes this by adding the Attorney General to the list of offices and candidates covered by the provisions of the Election Code Act where appropriate.