making local government more ethical

Should a District Attorney Be Counsel to a Council?

The Dallas Morning News on Wednesday 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.

The Dallas County DA is the county's chief law enforcement officer. He also represents the Commissioners' Court (the county council) in civil matters.

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."

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.

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.

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?

I believe counsel has an obligation to speak out, to tell the public that a board is acting illegally.

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.

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.

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.

Robert Wechsler
Director of Research, City Ethics