Legislative Auditor James Nobles concluded a preliminary investigation into allegations of impropriety in the Minnesota attorney general’s office and, in a letter released this morning to the Legislative Audit Commission, did not a find a basis for a full investigation.
Nobles does suggest that the Legislature consider whether state laws should be changed to give the lawyers and investigators in the AG’s office more job protection.
The report, which is brief and lacking in details, will be a relief to Attorney General Lori Swanson and her predecessor, Mike Hatch, whose tenure was also implicated in the allegations Nobles investigated.
And it will be a big disappointment to the present and former attorneys in the office who have been trying to call attention to what they characterize as an intimidating, coercive, overly politicized management style in which attorneys are pressured toward inappropriate conduct and fear retaliation if they don’t comply.
Nobles interviewed, under subpoena and under oath, seven of the present and former assistant attorneys general whose experiences gave rise to the investigation. Nobles says that although the attorneys felt pressured to commit inappropriate acts, the acts were not committed because they resisted the pressure. And although the employees felt that their subsequent demotion or reassignment was retaliation for their resistance to the pressure, they could not prove the connection.
The witnesses did confirm, under oath, that the incidents described in previous MinnPost reports had occurred. Nobles concluded that even so, they did not provide a basis for a full investigation.
He did not interview Swanson or Hatch. None of the names of the witnesses nor details of any of the incidents are in the report. He described, generally, alleged pressure on attorneys to:
“(1) sign and issue a civil investigative demand without sufficient merit; (2) insert unsubstantiated information in an affidavit; (3) give advice that was not in the best interest of a client; (4) find defendants to help the Attorney General’s Office bring certain types of lawsuits; and (5) post comments favorable to the office and Attorney General Swanson on an internet blog and record the time used for blogging as annual leave even though state time was used.”
Nobles wrote that at the meeting of the Legislative Audit Commission that gave rise to his investigation, several legislators expressed concern about second-guessing the management style of an independently elected constitutional officer, like the attorney general.
In describing his interviews with the witnesses, Nobles confirmed several of the main themes of the recent MinnPost series about the turmoil in the AG’s office. The witnesses said that the problems were not recent or limited to the Swanson era but traced back to the Hatch era. They described the office, under Hatch and Swanson both, as “focused on obtaining favorable media attention rather than the methodical legal work required to successfully litigate cases. Several of the individuals we interviewed pointed to cases they thought had merit that were dropped in favor of new cases that would draw media attention.”
They also said, as they had said in the MinnPost series, that Swanson’s decision in early 2007 to bring her mentor, Hatch, back into the office as her deputy, was the “tipping point” that led some of them to resign, some to seek public exposure of the problems in the office, and others to try to form a union.
I have contacted Swanson and Hatch’s offices for reaction to the report but have not heard back.
Nobles was specifically told by some of the legislators on the Audit Commission not to get involved in the unionization fight. But he did come close to that issue at the end of his report by suggesting that the Legislature consider the “at will” status of assistant attorneys general.
Under state law, attorneys and investigators of the AG’s office can be fired at will, for almost any reason or no stated reason, by the attorney general. Attorneys in other government agencies can and have unionized, but those in the AG’s office cannot, nor do they have civil service protection.
Swanson and Hatch have opposed any change that would allow the attorneys to unionize, saying it would impede the functioning of the office. Nobles suggested that the Legislature consider the issue, but made no recommendation of what they should do about it.
Reporting on this issue has been especially difficult because so many of the present and former officials of the office have been unwilling to speak on the record for fear of retaliation. The Nobles report induced one more former assistant attorney general to speak on the record.
Stephanie Morgan worked in the office from 2000-2007, and was active in the unionization drive. She left the office last year, in part, because of the dysfunctional office environment.
Speaking for the group of Swanson-Hatch critics, she said the Nobles report was “disappointing” but “not all bad.”
The group had hoped for a full investigation of the office, which, she said, is “in desperate need of some sunlight. We were hoping that this report would do that.”
On the other hand, Morgan said, “this report substantiates all of the reasons that we sought union protection,” which is that the attorneys could better represent the citizens of Minnesota if they didn’t have to worry about being fired or demoted for arbitrary or political reasons.
Morgan said she and the rest of the group were happy to see Nobles’ recommendation that the Legislature consider the “at-will status” question. Morgan said she had decided to step into the sunlight herself and speak for attribution out of solidarity with Amy Lawler, the former assistant attorney general who was recently fired after going public with her criticisms of the office.
“What she did was pretty gutsy,” Morgan said, “and she’s been left hanging out to dry.”
Lawler, on the advice of her own attorney, has stopped giving interviews. University of St. Thomas Law School Dean Thomas Mengler, who was chosen by Swanson to do an internal review of the Lawler case, concluded in a report last week that Lawler had violated an ethical rule by going public with her concerns in a way that “knowingly revealed information relating to the representation of a client.”