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Tuesday, June 3, 2008

The auditor's report: A quick analysis

The report released by the Office of the Legislative Auditor this morning appears to offer something to both sides of the employment dispute in the Minnesota Attorney General's Office. (See also prior post.)

For AG Lori Swanson, it offers affirmation that none of the complained of conduct in her office falls within the ambit of something that the OLA investigates. For the "at will" attorneys in the office who say they felt pressured to act in ways they believed were inappropriate, it offers a nod by calling on the Legislature to review their status to determine if they should continue to function "at the pleasure of the Attorney General" or should get some employment protections, such as the civil-service protections afforded some other state agency workers.

Given the limited review powers of the OLA, this "split-the-baby" approach seems fairly reasonable.

One added item of particular interest in the report: The OLA specifically mentions that most of the criticisms fell on Swanson's predecessor and mentor, Mike Hatch, rather than on Swanson herself.


Anonymous said...

All of Steven Simon's allegations - which include Amy Lawler's allegations - were verified during this investigation. (Perhaps this should result in a thorough review at Swanson's, I mean, Mengler's report and the subsequent firing of Ms. Lawler). The Legislative Auditor found that the attorneys were pressured to act inappropriately but refused to do so. These hard-working and ethical people need protection from demotion, retaliation and firing when they disagree with a supervisor. They should also not have to leave their job in order to abide by their ethical obligations.

Anonymous said...

Notwithstanding Mark's nuanced read of the report, looks like Swanson's just going to declare victory and end it at that: http://www.startribune.com/politics/state/19488944.html
Not very encouraging for anyone looking for real change from the office. Here's hoping the legislature does something (though I'm not optimistic about that).

Anonymous said...

Why is everybody calling this a great exoneration for the Attorney General? It's not. Here are the two key passages:

"The individuals we interviewed under oath testified that the events involved in the allegations did occur."

And what were those allegations as outlined in the LOA's letter? They are:

"... some attorneys in the Attorney General's Office felt pressured 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."

This is serious, serious stuff, and it is - according to the OLA - ALL TRUE. The only problem is that none of these allegations can be investigated by the OLA. They're outside of his jurisdiction.

Don't let Hatch and Swanson spin this as a victory. It's a huge defeat. They've been totally busted for deeply unethical behavior.

Now, the question arises: does the legislature have the courage to follow-up?

Anonymous said...

I couldn't disagree more with Mark's post. It reads as though the AGO has done nothing wrong. Ugghhh

Mark Cohen, editor said...

The key portion of the report is the following:

“OLA’s preliminary assessment confirmed what some members of the Legislative Audit Commission concluded on March 28 -- the allegations presented by Representative Simon are not the kinds of issues the Legislative Auditor addresses through an investigation. The few issues involving public funds that were presented to us during our preliminary assessment were assessed and resolved, or they will be addressed during our next financial audit of the Attorney General’s Office in early 2009.”

It’s not a final judgment on the merits, only a statement by the Office of the Legislative Auditor that this is not the kind of thing it is set up to investigate. (I realize, of course, that it has been predictably spun and misreported.)

In the end, there are very limited avenues of redress against an AG with whose management you are unhappy -- going through the courts (if he/she can be shown to have violated employment laws), lobbying lawmakers (whether that be to change the law on unions or to procure civil-service designation) or voting her out of office at the ballot box.

The OLA report contains a suggestion to try avenue #2.

Anonymous said...

As I read the report it confirms that, subjectively, the attorneys interviewed felt pressured. These attorneys, however, could not point to any supportable objective basis for these feelings (beyond their at-will employment status).

Mark Cohen, editor said...

Well, that’s not entirely accurate. It’s not just that the complaining attorneys were “at-will” and nothing else. They also would have to have been told to do something they were subjectively uncomfortable with (although its unclear if that feeling was communicated to the AG or other supervisor). What the auditor found was that there were no job-related “threats,” not that the attorneys just stood around the office feeling “pressured” about nothing in particular.

However, I will say this in the AG’s favor, nobody came forward with any verifiable instance of unethical conduct on her part or on the part of any other supervisors in the office. As folks in the AG’s office know, it’s innocent until proven guilty, anonymous charges notwithstanding. (And, as I mentioned in a prior post, despite the “Mengler Report,” I also do not think Amy Lawler committed an ethical violation by “going public.”)

I think we should take this situation for what it is -- a management-related dispute like the one that gripped the U.S. Attorney’s Office last year. The unproved ethics charges bandied about on both sides only distract attention from underlying managerial concerns that need to be addressed.

Anonymous said...

I disagree with Mark that this is simply a management issue. The AG's Office is not your run-of-the-mill law firm, job, or place of employment. It is a public office and its head ought to be held to a higher standard. The AG serves the public, is squarely before the public, and is accountable to the public. What was it my military commander's use to say...oh yeah, "Lead by example." The only example we are seeing is that it is OK for those in the AG's office to pressure subordinates into pursuing questionable conduct. Whether or not the subordinates actually crossed the line is a different question from whether it was appropriate for the AG chain of command to pressure them to do so. The problem from the reports is obviously much more systemic than merely a "management related dispute."

Anonymous said...

Mr. Cohen is also wrong that "nobody came forward with any verifiable instance of unethical conduct." They did. The auditor, for reasons of his own, chose not to verify them.

Mark Cohen, editor said...

I am not minimizing the ethical concerns of the employees who came forward for the OLA investigation (or others who didn't). A bad management style can create a culture that leads to ethical issues arising (e.g. employees are afraid to question orders, to discuss concerns or to fail in a an assigne task.) However, that is different from leveling a charge at the AG that she acted unethically. For that you need names, dates, provable facts.

The pressure to cross a line is subjective to the employees' mind. The AG herself may have in her mind that the tasks she's asking the employees to do are doable within the ethics rules, as it appears they all were in the examples brought up to the OLA. To make an ethics charge stick, you'd have to show the AG ordered someone to cross the line, left someone no other alternative but to cross the line or punished someone for not doing so. Ethics charges are pretty serious things, so thy require old-fashion proof, not subjective reading of intent.

However, that's not to say it's not an issue that some staff at the AG's office feel it doesn't have an ethical culture.

Mark Cohen, editor said...

As for the comment about the report, I am naturally basing what I say on the actual report. You are right that I do not know what evidence was given no credence by the OLA.

Anonymous said...

To be precise, the evidence of unethical conduct was not given no credence by the auditor, it was just deemed beyond the scope of his inquiry, which focused only on whether unethical acts took place by subordinate attorneys who were "pressured" by Swanson. The auditor did not attempt to verify evidence of Swanson's own unethical actions. (Would the legislature have what it takes to do so? I doubt it.) But how is it that putting pressure on subordinates to act unethically (which the auditor heard sworn testimony "did occur") is not itself a violation of professional ethics? Read Rule 5.1(b).

Mark Cohen, editor said...

Thanks for that clarification.

As to Rule 5.1(b), it provides: "A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct."

If you make an argument for a Rule 5.1(b) violation, the AG would just point out that none of the conduct at issue by her subordinates violated the rules (at least what's been examined so far). Since no rules violations have been demonstrated so far, it's a pretty tough argument to make. The AG would counter that the absence of an ethical violation by the AAGs demonstrates compliance with the rule. If there was evidence that someone had been ordered to violate a specific rule and punished for not doing so, that would be evidence of Rule 5.1 violation as well.

The conduct in Lawler's case is a good example of the proof issue. The AG could simply argue that she reasonably believed Lawler could file a mortgage-fraud suit within the timeframe given and still comply with the ethical rules (as she apparently did).

What the AG intends when she issues an order that it tough to comply with is anyone's guess. You may even think you "know" she intended you to act unethically. But it's not what you know, but what you can prove.

But if you or anyone else does have specific evidence of a Rule 5.1 violation, there's always the OLPR. I am sure Lawler would appreciate it. Although, as her case shows, whisleblowing actions come with a lot of risk. If I made such an accusation, I'd make darn sure I had the specific proof to back me up. I assure you, if you get in a Texas-style gun battle with the AG, she won't be using blanks.

Anonymous said...

Aren't all the associates in law firms "at will" employees? Why should the attorneys in the AG's office be any different?

Anonymous said...

I'm confused by the references to demotions. I work at the office and there are only three job classifications: Assistant Attorney General, Manager, and Deputy. I'm not aware of any managers or deputies who were "demoted" and there aren't that many managers and deputies so it would be obvious if they were. Is there some other way to get demoted?

Anonymous said...

Most attorneys at law firms are indeed non-union but there's a significant -- and growing -- number of corporate and governmental attorneys who have unionized. With all due respect, if anyone can't see why the attorneys -- and don't forget about the many staff members without law degrees -- at the MN AGO desperately need some kind of job protection (doesn't have to be a union; civil service protection would work, too)they're just not paying attention. 98% of MN state workers are unionized; I don't see why the AGO should be any different. Go ahead and make exemptions for managers and top advisors, but the basic "bread and butter" employess -- line attorneys, paralegals, investigators -- should have the same job protection as every other state employee. The PELRA spin that Swanson/Hatch are using is a red herring that has been swallowed whole by people who should know better. PELRA has been changed numerous times before and it could be easily changed again. If the current AG was a Republican, you can be assured that the legislature would've moved on changing the law this session.

This story is far from over -- and you can thank our AG for that, a labor-endorsed democrat who characterizes union organizing in her office as "unlawful" and "illegal." Her recent ham-handed attempts to curry favor with local labor unions would be laughable if it wasn't so repugnant -- she's a union buster, pure and simple. She's definitely a chip off the old Hatch; in other words, a disgrace to the office and an embarrasment to the people of Minnesota she purports to represent. Hopefully the voters will remember all of this in two years. The sooner the shameful Hatch/Swanson tenure at the MN AGO comes to an end, the better. Like the Strib editorial said, we all deserve better.

Anonymous said...

This is less and less about unionization and more and more about political bashing. Give it a rest.

Anonymous said...

You're right. I wish those dang DFLers would stop bashing Lori.

Anonymous said...

On the assumption that the previous comment about being "puzzled" about the references to demotions was sincere, here's my answer. Say you've been in one department for 10 years. You've built up substantive knowledge in the field and relationships with the leaders in the state department you represent. After asking an unwelcome question, you're suddenly and involunarilty transferred to another department--maybe you've got the same level of seniority on paper, and maybe even the same salary, but you've just been demoted. You're starting over in terms of substantive knowledge and relationships. Sometimes people choose to do that for a new challenge, but if it's involuntary, it sends quite a message.