Should a District Attorney Be Counsel to a Council?
<a href="http://www.dallasnews.com/sharedcontent/dws/news/localnews/stories/DN-d…; target="”_blank”">The
Dallas <i>Morning News</i> on Wednesday</a> ran a fascinating article about
Dallas County's district attorney. It caught my interest because he was
accused of a conflict of interest, but accusing this district attorney
of a conflict of interest is like accusing King Kong of being big.<br>
<br>
The Dallas County DA is the county's chief law enforcement officer. He
also represents the Commissioners' Court (the county council) in civil
matters.<br>
<br>
According to the article, the DA "has angered commissioners by taking
legal positions contrary to their wishes. [He] has said he must uphold
the law rather than telling the commissioners what they want to hear.
But in some cases, he has gone a step further, actively taking the side
of the opposing party and filing legal actions against the
commissioners. He did so this year, when he made a failed attempt to
stop the commissioners' independent investigation of some constables.<span class="vitstorybody"></span>"<br>
<br>
There are two important issues here. First, should a law enforcement
officer also act as a legislative body's counsel? Legislators say that
the DA has a conflict of interest, but he didn't create the conflict.
When you seek the advice of an official who is expected to enforce the
law, can you ask him not to enforce the law? If so, then you can
prevent enforcement of a law simply by asking his advice about it,
ignoring it, and then breaking the law.<br>
<br>
Also, when you seek the advice
of an official who is used to having great discretion in the actions he
brings, can you expect him not to bring actions he feels are right? A
district attorney is a very different sort of animal from a county
attorney.<br>
<br>
Second, what should a board's counsel do when the board does something
he has told it is illegal? This involves the basic government ethics
issue, whom does a government attorney represent, the board or the
individuals who sit on it? If the individuals do something counsel
thinks is illegal, does he have an obligation to the individuals to say
nothing, or an obligation to the public, whether or not he is district
attorney, to speak out?<br>
<br>
I believe counsel has an obligation to speak out, to tell the public
that a board is acting illegally.<br>
<br>
But does this obligation to speak out include filing an action against
the commissioners? That seems going too far. It is not counsel's role
to take action against those he represents. This should be left to
others, such as the district attorney, assuming they're separate
offices.<br>
<br>
Which is why a
district attorney should not represent any government official over
whom he has authority. No one should ever give advice when it's his job
to prosecute individuals who do not take that advice. And if the advice
is wrong, it makes things that much worse. Counsel who give poor advice
may look like a fool. But if he is district attorney, he can intimidate
people into doing what he says, with the threat of criminal action
hanging over them.<br>
<br>
The DA and the commissioners' court don't seem to be handling
this conflict well. The best thing they can do is get rid of the
conflict altogether by having the commissioners hire their own counsel, whether legislative counsel or county counsel.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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