A Government Attorney's Discretion
Georgia seems intent on providing an entire course on the ethical
obligations of government attorneys. This time it's the obligations of
the state's top government attorney, the attorney general. There's also
an issue concerning special government attorneys.<br>
<br>
The governor wants to file a suit to challenge the constitutionality of
the federal health care reform bill. The elected attorney general says
that it's unlikely to be successful, and would be a waste of state
resources.<br>
<br>
According to <a href="http://blogs.ajc.com/political-insider-jim-galloway/2010/03/30/house-go…
article in yesterday's Atlanta <i>Journal-Constitution</i></a>, 31 members of
the state house have signed a <a href="http://www.legis.ga.gov/legis/2009_10/sum/hr1866.htm">bill of
impeachment</a> against the attorney general. Here are the most
important paragraphs:<br>
<ul>
WHEREAS,
by
letter dated March 24, 2010, Attorney General Baker replied to Governor
Perdue that he would ignore the Governor's direction and would refuse
to
institute legal action, despite the Governor's clear and unambiguous
command to
do so and the Attorney General's clear and unambiguous duty to do so;
and<br>
<br>
WHEREAS,
by
failing and refusing to perform his constitutional and statutory
duties,
Attorney General Baker has abdicated his authority and has committed an
act
against the State of Georgia; and<br>
<br>
WHEREAS,
Attorney General Baker's shameful abdication of his lawful duties shows
him
unfit to serve the State of Georgia in the position of Attorney General<br>
</ul>
And here is the relevant <a href="http://www.sos.ga.gov/elections/GAConstitution.pdf">constitutional
provision</a>:<br>
<ul>
Article V, Section III, Paragraph IV . Attorney
General;
duties. The Attorney General shall act as the legal advisor of the
executive
department, shall represent the state in the Supreme Court in all
capital
felonies and in all civil and criminal cases in any court when required
by the
Governor, and shall perform such other duties as shall be required by
law.<br>
</ul>
The ethics question here is, can a law require a government attorney, or any
government official, to institute a case simply because an individual
sitting in an elected office orders him to do so? For example, must a
government attorney bring suit against a man who's been sleeping with
the governor's wife, just because the governor tells her to?<br>
<br>
In other words, does a government attorney represent a governor or
mayor, or the office of the governor or mayor? And does the government
attorney have the discretion to determine whether or not the individual
is acting in his or her personal interest?<br>
<br>
I think that a government attorney must have this discretion. In most
local government cases, the mayor could fire the attorney for refusing to file a suit, adding insult to the injury of acting against the public interest. But where
the local government attorney is elected, should refusal to do
something she believes is improper be grounds for removal? That would
turn an elected official into the servant of another elected official.
The top government attorney in any jurisdiction should be no one's
servant.<br>
<br>
Have we learned nothing from the <a href="http://en.wikipedia.org/wiki/Saturday_Night_Massacre">Saturday
Night Massacre</a>, where Nixon ordered his AG to fire the special
prosecutor, an act clearly in the president's personal interest? The
unelected AG refused, and resigned. The deputy AG refused, and
resigned. I think it is the constitution that is unfit to serve
Georgia, not the attorney general.<br>
<br>
<b>The Obligations of Special Government Attorneys</b><br>
The governor is taking a different tack. According
to <a href="http://blogs.ajc.com/gold-dome-live/2010/03/25/dems-demand-perdue-relea…
<i>Journal-Constitution</i> article</a>, the governor says that he will
appoint a special attorney general to bring his suit against the health
care reform bill. Does such a special AG have different obligations
from those of the regular AG? I don't think so. Such an attorney should
make the same determination whether or not the individual governor is
acting in his personal interest.<br>
<br>
The Georgia suit is, of course, not personal, but political. However,
the very same thing could happen in a conflict of interest situation.
The bill of impeachment would be less likely, but the special AG would
not. For our purposes, it is important to emphasize the need for a
government attorney to act as a legal advisor, and to determine whether
to represent an individual in an executive position when that
individual is acting in his or her personal interest rather than in the
public interest.<br>
<br>
Any law, rule, or constitutional provision that limits this discretion
should be repealed. And elected government attorneys should not be impeached
for refusing to be a servant to the personal desires of another
government official.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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