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.

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.

According to an article in yesterday's Atlanta Journal-Constitution, 31 members of the state house have signed a bill of impeachment against the attorney general. Here are the most important paragraphs:

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

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

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

And here is the relevant constitutional provision:

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.

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?

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?

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.

Have we learned nothing from the Saturday Night Massacre, 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.

The Obligations of Special Government Attorneys
The governor is taking a different tack. According to another Journal-Constitution article, 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.

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.

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.

Robert Wechsler
Director of Research-Retired, City Ethics

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