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Are political firings business as usual in the Minnesota attorney general’s office?

University of Minnesota law professor Prentiss Cox said the duty of staffers in the Minnesota attorney general’s office is to the state and public, not to a party or the person holding the office.

Republican candidate Doug Wardlow: "I’m not going to be doing anything political with the attorney general’s office."
MinnPost photo by Peter Callaghan
Was Doug Wardlow’s pledge to clean house — which received loud applause from those attending a GOP fundraiser — business as usual?
The Republican candidate for Minnesota attorney general is recorded at a partisan fundraiser promising to “fire 42 Democrats right off the bat and get Republican attorneys in there.”

DFLers reacted quickly, not just because it might violate ethical standards and even state law, but because it dents the GOP candidate’s claim that he will run an office free of politics.

The Republican, Doug Wardlow, now argues that his words were taken out of context because he preceded them by saying he wants lawyers who follow “the rule of law.” Besides, he argues, DFL attorneys general have fired attorneys after taking office.

“After her election, Attorney General Lori Swanson quickly fired 50 of the 135 attorneys in her office,” wrote Billy Grant, the campaign manager for Wardlow. (Although up to 50 staffers left the office in Swanson’s first year, not all were fired.) And Swanson’s predecessor and mentor Mike Hatch let 17 attorneys go after he took over the office in 1999.

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So was Wardlow’s pledge to clean house — which received loud applause from those attending a GOP fundraiser — business as usual? Does everybody do it?

Duty to the state, not a person or party

University of Minnesota law professor Prentiss Cox tried to argue against the case this week that such a move would be business as usual — and said that what Wardlow promised is a “disqualifying” event for any prospective attorney general.

“It is a very bright red line not to employ line staff attorneys based on party affiliation,” Cox said at a press conference convened by the Minnesota DFL.

While those staff attorneys in the Minnesota AG’s office are not covered by state civil service protections — they serve at the pleasure of the elected attorney general — Cox said it is the tradition of such public law offices that their duty is to the state and public, not to a party or the person holding the office.

“It is wrong for any attorney general candidate in the United States to say that they would come into office and determine the political affiliation of the attorneys in the office and replace them with someone from their political party,” Cox said.

MinnPost photo by Peter Callaghan
University of Minnesota law professor Prentiss Cox, center, at a press conference Monday with former Hennepin County senior attorney Carla Hagen and former Minneapolis Council President Elizabeth Glidden.
Cox has special standing to comment. He was a senior attorney at the state attorney general office for 14 years under Hatch and Hubert “Skip” Humphrey, including five years as head of the consumer enforcement division.

He told the Star Tribune this year that he was pressured by Hatch — when Swanson was chief deputy of the office — to do campaign-related work while in the AG’s office.

After refusing repeated requests to do so, Cox said he relented and was surprised when he entered a room with 50 people, including many co-workers, stuffing campaign mail into envelopes. Though the work took place outside of work hours, he said he still found it troubling. “Then they asked again. I said, ‘Hell, no,’” Cox told the Star Tribune. “It was really troubling.”

And he was critical of Swanson after it was reported this year that staff was rewarded for doing political work on her behalf. “I took the risk to speak out on that one because I thought it was a serious problem,” he said.

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But while that was bad, Cox said, what Wardlow said he would do is worse.

“That was serious and should have been a serious consideration for anyone in that election,” he said of Swanson’s campaign for governor this year. “But this is about as bad as you can get. … ‘we’re going to fire you for one fact: that you’re a Democrat. And we’re going to replace you with a Republican.’

“I’m sure you’re thinking it’s naive to say that politics has nothing to do with it. But there are lines. And then there are bright lines. And this is a bright line. It’s the brightest of bright lines.”

For Wardlow to say what he said out loud, Cox said, shows that he isn’t aware of the line.

While Hatch did have high turnover when he took over the office from Humphrey, Cox said he witnessed no removals based on party affiliation. “He fired Democrats,” Cox said. “You can come in and fire staff. I didn’t agree with how that was handled, but that’s a dispute over what the right way to manage an office is. But Mike Hatch did not come in and identify Republicans and replace them with Democrats. If he had done that, I would have had the same thing to say.”

Legal and ethical problems

Attempts to organize a union for staff in the AG’s office during Swanson’s first year in the role was unsuccessful — and were a factor in the dismissals that Wardlow cited.

Attorneys in many county attorney offices are covered by both civil service protections and union contracts, and Wardlow’s statements could reinvigorate a unionizing effort at the state level. “If we go to an environment where we have people who treat the office in a politicized and partisan way and we can’t restore the kind of employment integrity and service integrity that that office was known for for decades, then I think civil service probably makes sense,” Cox said.

Hamline University’s David Schultz, a lawyer who teaches political science and ethics, wrote in a blog post that it would likely be illegal to do what Wardlow threatened and subject the state to lawsuits from those dismissed. Schultz cited five different U.S. Supreme Court cases that stated that it would be a violation of the First Amendment rights of the assistant attorneys general if they were fired simply for being Democrats.

In those cases, Schultz wrote, the court ruled that “the consideration of partisan affiliation or party activity in the hiring, firing, promotion, or letting of contracts was a violation of the First Amendment. It did so by declaring the use of partisanship or party preference is not a compelling governmental interest in employment decisions.”

Wardlow, Schultz wrote, “might be able to consider partisanship and political views for a small number of close senior advisors, but certainly not in the way he is quoted in the media. Overall, whether Wardlow was serious about his intention to fire Democrats or it was simply a stump fundraising speech to rally Republicans is immaterial. An attorney general cannot take actions that violate clearly settled constitutional law, and were he to do so it would raise many legal and ethical problems for him and the state.”

Testing the sports cliché that the best defense is a good offense, Wardlow slammed Ellison and the DFL as, “simply desperate.” Ellison, he said, wants to use the office “to promote himself and his radical political agenda. His attack is laughable, considering he is deputy chair of the Democratic National Committee.” Despite the recorded comments, Wardlow said, “there will be no litmus test for party affiliation.”