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Thursday, March 27, 2008

AG's Office getting closer to an independent review -- but what kind?

A couple of interesting developments in the ongoing controversy that has been much reported as of late in the Attorney General’s Office. The Associated Press is reporting that AG Lori Swanson wrote in a letter to Legislative Auditor James Nobles that union organizers "have largely made anonymous and conclusory allegations in the press and blogosphere."

According to the AP, Swanson sent a similar letter to the Office of Lawyers Professional Responsibility outlining the allegations and asking that the office review them for rules violations. And she enlisted Thomas Mengler, the dean of the University of St. Thomas law school, to conduct an independent review, the AP reports.

While I have the greatest respect for Dean Mengler, a highly regarded member of our legal community, one wonders whether there would be the necessary buy in from the rank-and-file or even the general public when the AG is handpicking her own independent reviewer. But even getting by that simple acceptance question, such an approach raises a bevy of potentially thorny issues, including:

  • To whom would Mengler be reporting? (Swanson? The office? The Legislature?)
  • What would be the scope of the review? (Just the ethics complaints? All non-union issues? All management-related issues?)
  • What limitations would be put on the investigation?
  • To what information would he be made privy?
  • To whom could he talk? (And under what circumstances?)
  • How could he carry out an investigation without the power to subpoena?
  • What confidentiality would be afforded individuals providing information?
  • What would be done with the data collected?
  • To whom would the final results be made known?

These difficult questions would have to be answered up front and to the satisfaction of interested parties in order for such a review to meet with more success than the much-derided staff-polling approach undertaken earlier by the AG utilizing ex-Judges Miles Lord and Jonathan Lebedoff.

If a reviewer comes in at the AG’s behest and follows the ground rules that she herself sets up, I suspect the review will do little to stabilize the office situation or instill public confidence. With so much water having passed under the bridge at this point, it's likely that many would view this as a strategic maneuver designed to head off a more rigorous investigation. While Mengler's involvement may prove helpful in any number of regards, it is no substitute for a thorough independent review by Legislative Auditor Nobles.

According to MinnPost’s Eric Black, a legislative commission is convening Friday to consider the possibility of having Nobles conduct an investigation of some of the issues reported in the AG's Office.


Anonymous said...

As is par for the course, Lori has not communicated any of this to her staff, so I doubt it will be a wide scope of review. Because Lori has turned this whole issue into a personal attack campaign against the efforts of the few attorneys brave enough to go public, I fear that Lori will set the parameters of the "independent review" to be limited to whether Amy Lawler followed "proper channels." It's naive to think that she would allow a broader review in light of her reactions so far. Let's not forget that Lori has yet to even deny any of the allegations, but instead has given an anonymous-must-mean-untrue type response.

Mark Cohen, editor said...

Even if one could get by the substantive and procedural issues entailed in an internal AG-sponsored review at this point, it is unlikely that anyone outside of management at the AG's Office would accept the results.