As folks debate the role of the
Attorney General and the candidates in the 2021 election, I've updated a blog
entry I first wrote before the 2005 elections regarding the role
of the Attorney General and the scope of the power we afford the person we
elect to this too little discussed, "down ballot" race. I hope that
you will find it helpful, and that it will make clear that the Attorney General
of Virginia is not the "chief law enforcement officer" or even the
state's chief prosecutor (except in limited cases) but has a much broader job
as the Commonwealth's "general and consumer counsel," "civil rights enforcement officer," and "legal
advisor."
Choosing the People's
Lawyer: Questions to Ask Candidates for Virginia Attorney General
The Virginia Attorney General
is the people’s lawyer serving as our advocate in consumer matters, defending
our decisions as jurors in criminal appeals, protecting our investments in
charitable organizations and institutions, initiating, and overseeing
prosecution of government fraud and conflicts of interest, and advising the
state officials and agencies who serve us. Just as you carefully choose
the lawyer who advises your business and your family, each Virginian should
look carefully at the qualifications and stated priorities of the two men
running for Attorney General this year, current Virginia Attorney General Mark
Herring (D) and Delegate Jason Miyares (R).
Here are some questions to ask
that will help you can decide which man to "hire" as your lawyer when
you enter the polling booth to vote on November 2nd:
How will the candidates
represent your interests as "consumer counsel?" State law requires the Attorney General to
represent the "interests of the people as consumers." What does this
mean to the candidates for Attorney General? Will either of them take an active
role in investigating and enforcing Virginia’s Consumer Protection Act
prosecuting actively those who deceive consumers by making false claims about
their products or services? What action will either take to protect consumers’
interests when the State Corporation Commission reviews insurance, electric and
telephone rates? One past Attorney General helped reduce workers’ compensation
insurance costs for businesses by aggressively fighting insurance rate cases
before the State Corporation Commission. Others have been less active.
How will each candidate
decide when to challenge or defend a law passed by the legislature, appeal a case,
or sign an amicus ("friend of the court") brief? Past Virginia Attorneys General,
acting on behalf of the people of the Commonwealth of Virginia (their ultimate
client), have: 1) refused to defend the legislature’s decision to increase
office allowances for members of the House and Senate (the legislature won); 2)
defended at trial and on appeal a plainly unconstitutional statute passed by
the legislature that sought to ban a particular abortion procedure (the
so-called partial birth abortion bill); 3) filed lawsuits attacking the
application of certain EPA rules and the federal Motor Voter Law to Virginia;
4) authored or signed briefs that advocated severe limitations on the right of
individuals to sue the state for discrimination under the Americans with
Disabilities Act, the Age Discrimination Act and Title IX of the Education
Amendments of 1972; 5) defended secrecy in the implementation of the death
penalty; 6) defended solitary confinement in state prisons and 7) decided not
to defend the unconstitutional amendment to our Virginia constitution that
denies marriage equality to LGBTQ Virginians. How will this year’s candidates
make these decisions? Will their choices reflect their personal beliefs, those
of their respective political parties or some other standard? Will they consult
with the Governor before committing the people of the Commonwealth to a side in
a legal dispute?
Will the candidates be
"activists" or "strict constructionists when it comes to
interpreting the law? State
law requires the Attorney General to issue formal opinions interpreting state
and federal law when asked by certain public officials. The questions asked
each year cover far reaching issues from the legality of "pull tabs"
in fraternal lodges to the right of localities to regulate shooting ranges to
the Lieutenant Governor’s authority to vote as "a member of the Senate."
Just as it is important to know how a judge will apply the law, it is important
to know how a candidate for the office of Attorney General will perform this
judge-like responsibility. One example shows the power the Attorney General can
wield through the opinion function. In 1962-63, in 1966-67 and in 1991, three
Attorneys General opined that it was unconstitutional under the Virginia
Constitution for public school divisions to provide free bus service to
students attending private religious schools. The three Attorneys General
interpreted the Virginia Constitution as setting a stricter standard for the
separation of church and state than is set by the First Amendment. This
longstanding interpretation was never addressed by the Virginia legislature nor
overturned by the Virginia courts. In 1995, stating simply that "I am of
the opinion that these prior opinions do not accurately state the current
law," then Attorney General James Gilmore issued an opinion overruling the
prior opinions and interpreting the law as permitting local school divisions to
provide bus transportation to students attending private religious schools. How
will this year's candidates approach this important duty?
Will the candidate be a
good steward of your tax dollars? The Attorney General of Virginia, who makes a salary of
$150,000 a year, is the managing partner of a public law firm with hundreds
employees and a budget (inclusive of Medicaid fraud and the division of debt
collection) of almost $60 million in state and federal funds -- not including
the cost of additional lawyers paid for by various state agencies but
supervised by the Attorney General (e.g., at universities), and the millions of
dollars spent annually on outside counsel (private lawyers and law firms who
handle matters ranging from intellectual property and immigration to issuance
of bonds to collection work) ($11 million in 2013-14, the last data available
regarding payments to private counsel on the current AG's website despite an
express commitment to transparency and to updating budget info at the end of
each quarter).
What steps will each candidate
take to be sure that dollars spent on the state’s legal work are well invested
and that the quality of representation provided to taxpayers is high? What will
the candidates do to improve the state’s collection of debts owed and fines and
penalties unpaid or to take steps to forgive debts (the Division of Debt
Collection does operate under the auspices of the AG even though it is often
not included in AG budget totals)? How will each candidate account for the
$9,000 a year that he will receive as Attorney General for "expenses"
"not otherwise reimbursed?" Past attorney generals have kept
and reported the amount as income and filed requests for reimbursements of all expenses. One
disturbing reality of the current AG's budget management is that the office
sought budget language that allows dollars allocated for consumer protection,
anti-trust and "business regulation" to be spent on any
"litigation initiated by the Attorney General" or on the costs of the
civil commitment program that can result in people being committed to state
mental health facilities for life after having served their criminal sentences
for sex offenses. This means money that was allocated to protect
consumers and businesses from high utility and insurance rates and prosecute
anti-trust violations can be diverted to non-consumer protection issues and
cases.
Will the candidate’s
management practices as Attorney General reflect a commitment to full equality
of opportunity at all levels? Will the AG establish a culture of inclusion in the
office? The Attorney General can hire and fire employees at will. No
person employed in the AG's office enjoys the protections other state employees
enjoy. Will the candidate seek and hire employees based on merit? Will the
candidate commit not to discriminate in employment based on race, national
origin, gender, religion, disability, Veterans’ status, sexual orientation, or
gender identity? Will the candidate commit to ensure that the Office’s hiring
and personnel practices reflect a commitment to merit over political
affiliation and full equality of opportunity and compensation at all levels of
employment? Will the candidate commit to assuring that office policies are
enacted that respect the dignity of transgender employees? How will each
candidate assure that the contracting and procurement practices of the Office
of the Attorney General under his leadership assure that small, women and
minority owned businesses get their fair share of the state dollars that the
Office spends based on their market availability? Will the candidate agree to
post to their websites their EEO-1 reports to the federal government that
detail the make-up of their workforces? See this
article I wrote for some historical background on this issue.
How will the candidate grow
the Office for Civil Rights in the Department of Law (the AG's office) and
protect against conflicts of interest when the state agencies the AG represents
are the focus of discrimination complaints?
The Office for Civil Rights in the AG's office was given expanded authority to investigate and litigate civil rights claims during the 2021 Special Session 1. Included in this expanded authority is the authority to investigate pattern and practice claims of unlawful deprivations of civil rights by law enforcement personnel or agencies. It is unclear yet how either candidate will act consistent with this new authority to prevent and provide relief from unlawful discrimination consistent with this policy set forth in the amended law: "It is the policy of the Commonwealth of Virginia to provide for equal opportunities throughout the Commonwealth to all its citizens, regardless of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, sexual orientation, gender identity, disability, familial status, marital status, or status as a veteran and, to that end, to prohibit discriminatory practices with respect to employment, places of public accommodation, including educational institutions, and real estate transactions by any person or group of persons, including state and local law-enforcement agencies, in order that the peace, health, safety, prosperity, and general welfare of all the inhabitants of the Commonwealth be protected and ensured."
Voters
should be asking both candidates for their plans to implement this new
authority and protect all Virginians from discrimination in their workplaces, schools,
and businesses.
How the candidates for
Attorney General answer these questions will reveal much about what kind of
leader each will be in the role he is now seeking and more about what kind of
leader he might be as Governor when he (inevitably, it seems) decides to seek
higher office in four years.
