Minnesota Lawyer Blog

The Legislative Audit Commission will meet 1:00 p.m. Monday, June 30, in room 107 of the State Capitol, to discuss, among other things, the Office of the Legislative Auditor's preliminary assessment of allegations concerning the office of Minnesota Attorney General Lori Swanson. (For hearing notice, see OLA website.)

In a report issued earlier this month, the OLA found it did not have jurisdiction over the types of complaints raised against Swanson by some of her staff members. However, in light of the concerns, the OLA called on lawmakers to review whether it's necessary that all the attorneys in the AG's Office remain at-will employees serving at the pleasure of the AG. (The employees at some state agencies have been afforded civil-service protections.)

The purpose of tomorrow's meeting is to hear from the Legislative Auditor James Nobles, his staff and the state officials directly affected by the Legislative Auditor’s reports. Testimony from others will not be taken at this meeting.

Despite the internal strife that has gripped the Minnesota Attorney General's Office, AG Lori Swanson made an impressive showing in a report that ACORN released this week ranking state AGs' efforts fighting mortgage foreclosures.

Swanson was one of six state AGs who got an "A+" from the grassroots community group. The other state AGs getting the highest ranking were from Connecticut, Massachusetts, New York, Illinois and Iowa.

Management controversies don't always translate to bad external performance by an office. It's worth recalling that despite the turbulence in the local U.S. Attorney's Office last year, it was reported that the office managed to set a productivity record under Rachel Paulose.

I think the Star Tribune's editorial today ("Minnesotans deserve better from AG's office") provides a pretty good assessment of the situation at the office of Attorney General Lori Swanson.

Here are a few of the money quotes:

• "When this office is in turmoil, as it has been for some time,
  Minnesotans should pay attention";
• "The findings [of the Office of the Legislative Auditor] are not
  the exoneration that Swanson's office portrays them to be. If anything, they
  reinforce that the situation bears scrutiny."
• "Although Swanson may not have crossed legal lines, Nobles' report gives
  good reason to doubt that she and her predecessor, Mike Hatch, have been the
  best possible stewards of that asset."
• "Swanson is a smart attorney and hard worker. But the state's top legal
  job also requires her to be something more: a good manager. It's a different
  skill set than that which has carried Swanson far in her career. But it's
  something she can -- and must -- learn."
  

Thanks to those of you who brought this important issue to the public's attention. It is highly unfortunate that the badly needed scrutiny came only at great personal and professional cost to the young assistant AG involved, Amy Lawler.

The Star Tribune reports that Attorney General Lori Swanson has fired Amy Lawler, the young assistant AG who has been under suspension since she went public with accusations against her boss of mismanagement, union-busting and ethical improprieties.

The action reportedly came after University of St. Thomas School of Law Dean Thomas Mengler, whom the AG commissioned to look into the ethical allegations, issued a report finding "no evidence of any unethical conduct" by the AG.

Here are two interesting graphs from the Strib story;

Swanson released a statement saying that news coverage of Lawler's allegations earlier this year "ignored the fact that with only 90 days experience in the office, the attorney was in a questionable position to judge the procedures utilized by the office."

Brian Bergson, a spokesman for Swanson, said Lawler was terminated based on the report's findings and because of "other issues" that he did not identify.

If this blog had a "Profiles in Courage" award, I would without hesitation bestow it upon Rep. Steve Simon, DFL- St. Louis Park.

Simon's name has unfairly been dragged through the mud as of late as a direct result of his having the temerity to break ranks with his party and be the lone DFLer on the Legislative Audit Committee to call for a probe into what is going on in the Attorney General's Office. (Click here for details about the fallout from a recent e-mail sent to a number of DFL lawmakers implying that Simon's real motivation for calling for the investigation was a departmental transfer he received while he worked at the AG's Office.)

As has been recorded here in a numerous posts, the AG's Office has been rocked by more than a year of virtually nonstop staffing turmoil, including unusually high turnover and the alleged use of anti-union tactics. Three staff members publicly stepped forward with some of their concerns in a letter earlier this year. One of them has since been indefinitely suspended after making statements on the radio and in the blogosphere calling into question how AG Lori Swanson is running the office. The allegations include assertions of ethical and legal violations. And yet we are supposed to believe that the one DFL lawmaker brave enough to step forward and ask for a probe to look into these matters could only be doing so because he has an ax to grind?

MinnPost's G.R. Anderson, who attended the legislative hearing at which Simon took his bold stand, reported that the DFL lawmaker then explained his decision to call for a probe as follows: "The attorney general is the people's lawyer. I don't care if you're a Republican or a Democrat. It ought not to matter." Wise words indeed. (And let's not forget that that the auditor's investigation may actually clear Swanson of any legal or ethical violations.)

If, as the e-mail purports, Mike Hatch is in fact the spinmeister impugning Representative Simon's integrity, history provides a simple, yet elegant response to Mr. Hatch's political chicanery: "Have you no sense of decency, sir, at long last? Have you left no sense of decency?"

We just passed the one-year anniversary of the day (April 5, 2007) when three top deputies and one administrator at the office of then-U.S. Attorney Rachel Paulose stepped down from their leadership posts in protest of her management style. It's an interesting milestone to reach as we await the results of a preliminary investigation by the legislative auditor into what's going on at the Minnesota Attorney General's Office, where similar issues regarding management style have been raised.

Of course, that's not what the auditor is looking into. His investigation is limited to determining whether there is any basis to allegations that AG Lori Swanson committed any ethical or legal lapses in how she has run the office. The narrow focus was designed to show respect for the wide discretion public officials -- particularly elected ones -- are afforded in managing their own offices.

Because the standard for ethical and legal violations is fairly high, it is not an unlikely result that the auditor will find that none exist. If that happens, it would be taken by some as a "clean bill of health" for the AG's Office, even though the underlying management-related concerns would continue to fester. That is unfortunate.

If I had my druthers, there would be a managerial boot camp or some sort of roving advisor who could counsel people such as Swanson or Paulose who, depite their intelligence and work ethic, run into difficulties managing a major public office. It's easy when you're locked into a combative management situation to lose sight of the forest for the trees. An outside perspective would be very helpful.

The state’s legislative auditor is launching a preliminary investigation to determine if there is any basis for allegations of ethical and legal misconduct occurring in Attorney General Lori Swanson's office.

For the Minnesota Lawyer article, click here.

Since the auditor is going to limit his review to just the ethical and legal complaints, perhaps University of St. Thomas School of Law Dean Thomas Mengler, whom Swanson has reportedly enlisted to review her office, could be helpful to Swanson in identifying managerial areas that could use addressing.

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.

The Star Tribune has weighed in on the turmoil in the Office of the Minnesota Attorney General with an editorial calling for an independent review by the legislative auditor ("Resolution needed in AG controversy.") I think that is a fair proposal and one that I hope AG Lori Swanson takes to heart.

Critics of the union movement on this blog and elsewhere have blamed the turmoil and morale problems on everything from a Swanson DFL political rival, to a right-wing political conspiracy, to union bullying. In a bizarre twist, one Swanson ally on this blog even accused the Communist Party of orchestrating the disharmony.

While I certainly cannot disprove the allegation that one or more outside forces had a hand in the virtually nonstop internal issues that have roiled the office during Swanson's first 15 months, the ill-conceived management practices current and former employees in the office have described strike me as a much more likely culprit. In fact, when reports of the morale issues first started trickling to Minnesota Lawyer from current and former staff members at this time last year, those reports had an oddly familiar ring to them. An identical litany of allegations of mistreatment by management bubbled up from current and former staffers early in the administration of Swanson's predecessor and longtime mentor, Mike Hatch. (And I don't mean to pick on Hatch. Heavy-handed management approach and sometimes abrasive style aside, he was a staunch advocate for "ordinary Minnesotans" who today remains one of the state's most brilliant political tacticians.) But I cannot help thinking that if Swanson could just bring herself to abandon the management methods of her mentor, and instead adopt a more conciliatory approach, that would go a long way in diffusing the situation in her office.

However, no improvement will come about so long as the AG and some of her supporters continue to point the finger at outside sources as being the cause of the staff dissatisfaction. Having an independent third party come in to get at the root of things would be an excellent way to help the office resolve this seemingly intractable impasse. It's in the office's best interests, and, to be frank, in Swanson's own political interests to straighten this out. Let's get the legislative auditor in there to either give the office a clean bill of health, or more likely, find the areas that need addressing so that both Swanson and her staff can move forward.

I have been following the coverage today on the the Minnesota Attorney General's Office by Minnesota Public Radio and Eric Black at MinnPost. I haven't posted anything primarily because the coverage has been fairly extensive and I don't have much to add at the moment.

It's worth noting that MPR has a posted a PDF of the lengthy letter that assistant AG Amy Lawler sent to Deputy AG Karen Olson after Lawler was placed on administrative leave over remarks she made to the media critical of management of the office. Regardless of your take on the situation, it makes for interesting reading.

UPDATE: The AG is mending some union fences. This in from the local Fox News site:

Beginning April 1, hundreds of Minnesotans will no longer be able to receive care at Park Nicollet. The clinic has chosen not to accept Medicare service plans, including Medicare-supplemental health plans. ...

The Local 49 union has reached out to Attorney General Lori Swanson. Swanson has taken up their case, accusing Park Nicollet of choosing profits over patients. While Park Nicollet has said they’ll continue seeing patients with complicated or compromised medical conditions, they fail to be specific about what that entails, says Swanson.

Click here for more.

I was disappointed but not surprised when I heard assistant Attorney General Amy Lawler had been suspended from her job after interviews aired on Minnesota Public Radio and published on MinnPost critical of Attorney General Lori Swanson. Frankly, the only unexpected thing was that it took them a couple of days to do it. But of course, that's mostly because there was an intervening weekend.

Lawler is a fledgling attorney who started at the Attorney General's Office last fall shortly after graduating Harvard Law School. She's not some sort of a political hack on a vendetta against Swanson, but an idealistic young lawyer who happens to believe in unions. With the bravery (or perhaps naivete) of youth, she volunteered herself to be the public face of the union movement in the office -- something the more seasoned hands in the office were understandably reluctant to do themselves. Most of the management concerns Lawler expressed to MinnPost's Eric Black and Minnesota Public Radio have been previously expressed by a number of others in the office, albeit not for attribution.

The reason proffered for Lawler's forced administrative leave -- not going through "proper channels" for filing an ethics complaint -- strikes me as weak, particularly given that, in a labor dispute, the channels are what's the problem. In any case, I believe the complaints Lawler has against Swanson are based on her management style rather than on any alleged ethical breach. And at least one press report indicated that Lawler had affirmed as much in an e-mail to management. So it appears the "crime" for which Lawler was put on forced leave was that she failed to follow the proper procedures for bringing an ethical complaint that she did not have. (To borrow a phrase from "Casablanca," they have not quite decided yet whether she committed suicide or was shot while escaping ...)

Under the playbook that has been in use at the AGO for the last nine years, management would take a hard line with a dissenter like Lawler --- isolate, marginalize and root out. But what if -- and this is a big what if -- Swanson threw the playbook into the meat grinder rather than Lawler. This sincere young woman did what she thought was right and highlighted some longstanding concerns that badly need addressing, regardless of whether management agrees with the methodology. What if management actually listened to the concerns she expressed and attempted to address them? What if rather than treating Lawler as the enemy, management treated her as the friend who told it that its zipper was open? That might be a more effective way of diffusing the labor situation at the office than any sledgehammer-approach could ever be.

It's time for a new approach at the AGO. Allowing Lawler to return from administrative leave would be an excellent first step.

Minnesota Lawyer's website just posted the results of today's "informal survey" of attorneys at the Minnesota Attorney General's Office. (Click here for article).

Staff attorneys were asked whether the writers of a recent letter critical of Lori Swanson spoke for them. The majority of those present and willing to participate said no. (The vote was reportedly 52-30, with 12 declining to participate and 30 out of the office or not otherwise available to vote.)

It's hard for me to say what that vote means because I find the question itself confusing. You could be in favor of a union and not agree with everything that was in that letter. Or you could agree with everything that was in that letter, but not want to give the letter writers the authority to speak for you. It would have been a much simpler and cleaner affair if they had just asked the employees if they wanted to unionize.

In an e-mail sent to her entire staff this morning, Minnesota Attorney General Lori Swanson offered a response to a letter sent by three of her assistant AGs late last week calling upon her to recognize a union in the office. (As Minnesota Lawyer reported yesterday, the letter represents the first time current staff members in the AG’s Office have stepped forward and openly advocated for a union.)

Swanson said she was sick with the flu last week when the letter was posted on the Internet, and that she was “disappointed” the employees distributed the letter to the public and the media before she could respond.

“This suggests a communication that is more about a political swipe and less about a good faith attempt to communicate,” Swanson wrote. “It does not further the mission of this office to have political debate with staff members who are supposed to represent this office as professionals.”

(In their letter, the three had disclaimed having any political motivation. “[This effort] is not supported by any outside political interests, nor is it the product of any political vendetta,” they wrote. The three assistant AGs who wrote the letter were all hired during the administrations of AGs from the DFL Party – one under Swanson, one under Mike Hatch and one under Skip Humphrey.)

Swanson said in the e-mail that she “strongly disagrees” with the accusations in the letter, which include assertions that a campaign has been waged in her office to stifle the unionization attempt.

She said she will have two of her deputies meet with the three assistant AGs who wrote the letter to “to flesh out the purpose of the letter and whether the three signatories actually represent the rest of the staff.” She also said she has her own "sense of the staff" and plans to gauge the staff further.

Swanson also noted in the e-mail that Rep. Tom Emmer, R-Delano, yesterday distributed copies of the three staff members’ letter on the floor of the House and called for an investigation of her office.

A copy of the full text of Swanson’s e-mail appears as a comment to another post on this site. We have verified through independent channels that staff members received the posted e-mail.

We had a laugh yesterday afternoon at Minnesota Lawyer’s offices. When we put a poll on our main website asking voters whether we thought the attorneys at Minnesota’s Attorney General’s office should be allowed to unionize, votes soon started trickling – and then flooding – in, as people on both sides of the issue frantically clicked the “yes” and “no” options. (The anti-union folks seem to have been much busier.)

The response demonstrated (take your pick) A) the passionate feelings this issue stirs; B) the silly lengths that some on both sides will go to in order to make their point.

We’ve covered this story to some length, but a year after it first emerged, the basic facts remain the same: AFSCME wants to form a union in the AG’s office, the AGO is digging in its heels, lots of lawyers (about one-third) have left the AGO, and morale in the office is bad and getting no better.

In the meantime, we’ve gotten numerous anonymous communications from pro-union folks (both on this blog and via e-mail) about the heavy-handed tactics that continue to be used against AGO employees, but little of substance around which to build a story that wouldn’t be one-sided and full of unsubstantiated speculation.

At the same time, the AGO is as uncooperative with us as it is with other media outlets, refusing to return calls and failing to follow through on Data Practices Act requests. Lori Swanson and her loyalists seem all too happy to see this story go unreported, even if means pushing ethical boundaries. And current and former AGO employees who could potentially contribute to the story are either unwilling to speak for attribution or have a pro-union axe to grind.

That puts us and other outlets in a bind, because while there might still be a story to be told at the AGO, most of what we’ve heard is hearsay, and we can’t use hearsay. We have all the Deep Throats we need on this one.

If there truly is more to be told, we hope a few people from both sides of this issue will drop their cloak of anonymity and let us know.

We received an interesting comment to the post directly below, "Billable hours are sooo 2007." (Believe it or not, we do read all your comments!)

This particular comment has nothing to do with the post to which it is attached, so we thought we'd pull it out and place it here in its own post so folks concerned with the topic would have the opportunity to get a look at it.

We do, naturally, have some thoughts on the topic the commenter asks about, but first wanted to open it up to see if anyone else had any input on this subject before we formulate a response. So, without further ado, here is the comment. Add anything you like, and we promise to address the substance of this sometime next week.

I'm disappointed in Minnesota Lawyer's recent lack of coverage of the ongoing story of attempts to organize a union at the AG's office and AG Swanson's ham-handed efforts to undermine that effort (the Keystone Cops would have done a better job a union-busting). Minnesota Lawyer's blog help make the story public earlier and exposed the questionable decision to keep Mike Hatch on board. Now Minn Lawyer appears to have forgotten to do any follow up coverage. It was big deal when there was unrest in the US Attorney's Office but somehow the departure of 1/3 of the line attorneys at the AG's office in the past year and ongoing unionization efforts doesn't make for a story of public interest? C'mon. Where's the journalism?

While you are waiting for our insightful reply, we suggest you check out the piece Steve Perry wrote last week for his blog, the Daily Mole. ("It's cat-and-mouse in the AG's Office as staffers try to unionize.")

I just attended an interesting CLE program sponsored by the Hennepin County Bar Association entitled: "What to do when the Attorney General comes calling" (or "comes a' knockin," as I like to say.)

The panelist were two ex-AGs -- Mike Hatch (left) and Warren Spannaus. The lunchtime panel was fairly well attended; many of those there were in-house lawyers curious if they could pick up any tips as to what they could do to keep AG Lori Swanson from kicking in the door to their company. Hatch handed out a nice sum-up packet on the letterhead of his new firm, Blackwell Burke.

Hatch's advice included the following tips on how NOT to respond to the AG's Office:
-- Don't go in and talk about politics;
-- Don't engage in threats or personal attacks;
-- Don't be condescending;
-- Avoid histrionics and "righteous indignation"; and
-- Never be the tallest nail on the board -- in fact, scrunch down if you can.

Illustrating the last point, Hatch offered the following example in his materials:

"A lawyer took it upon himself to get in my face after a Congressional Hearing in which I testified on an issue, although I didn't name his company. After his outburst, I asked [the lawyer] which company he represented. Guess what company in that particular industry got sued?"

Just as an update on a prior post, I note that the Minnesota Attorney General's Office is again looking for a few good attorneys (or if not that, at least a few mediocre ones ...). Here is the link to the Bench & Bar classifieds in case you are interested in applying. (Hey, you get a retirement plan, holidays off and "more hands‑on legal work on challenging legal issues anywhere else" -- what more could you ask for?)

There was an interesting interview on Minnesota Public Radio this morning with Attorney General Lori Swanson on her first eight months in office. The interview, conducted by Kerri Miller on the Midmorning show, made for very interesting listening. Overall, I thought Miller did a good job in asking some difficult questions about Swanson's stance on the attempted unionization of employees at her office, morale issues at her office and other management troubles that have cropped up in the early part of Swanson's term. Swanson resorted to nonanswers on a number of these inquiries. (One irate caller actually compared her evasive answers on some of these questions to those of U.S. Attorney General Alberto Gonzales in his testimony before Congress.)

On the other hand, I thought Swanson did a very good job discussing some of the priorities of the AG's Office, including going after predatory lenders. And I do have to give her credit for at least putting herself out there to be confronted by some hard questions -- including fielding a phone call from a none-too-pleased AFSCME official.

But why not listen to the entire interview yourself and see what you think? The interview can be accessed on the MPR site by clicking here.

Last week, we got an interesting comment on the departures at the AG’s Office, which have been discussed extensively on this blog:

“Experienced attorneys continue to leave the AG's Office, and with few exceptions, they are being replaced by inexperienced attorneys. More important still, because of the departures, these new attorneys, whatever their innate abilities, have few mentors to guide them. Some divisions are decimated. There is now no Consumer Enforcement division at the AG's Office. … Consumer cases are being passed off on lawyers in other divisions who are unable to handle them, and older cases are being settled for next to nothing or are being dropped altogether. Every civil defense firm in Minnesota now knows that the best way to handle an AG investigation or lawsuit is to string it out, not settle at a high cost. Eventually the AG will throw in the towel.”

The commenter also takes the media to task for its coverage of the AG’s dispute:

One more point. The local media needs to do its job. The story of the AG's Office did not end with the departure of Mike Hatch. Two months ago, when the story broke, former deputies and division managers with firsthand knowledge of the actions of Hatch and Swanson (actions that would shock the complacency of Minnesotans who like to boast that they live in a good-government state) were beginning to talk. Inexplicably and inexcusably, the press stopped asking questions. ….
(Click here for the full text of the comment)

There are a couple of issues implicated in this comment. The departures for the first few months of 2007 were fairly well chronicled in the articles on the issues at the AG’s Office in late April and early May. Minnesota Lawyer checked in with the union probably about a month after Hatch left, but it was reticent to say much at that point other than that it was then still collecting signatures. It has been mentioned here and elsewhere that the Consumer Enforcement Division has been particularly impacted by the departures.

It’s always a balance how much you update a story. One wants to give the current AG, Lori Swanson, a chance to clean things up now that the morale issues have come out into the light and her old boss, Mike Hatch, has left. Swanson is a constitutionally elected officer who still has three-and-a-half years left in her term, so one would hope she will now take advantage of that time to carve out her own legacy. How she deals with the unionization attempt and whether she is able to restore morale will go a long way in determining what kind of employees the office will be able to attract and retain. In turn, good employees can do a lot of good things that will help restore her office’s reputation.

While the office has lost a lot of high-level talent, there are still many talented folks who remain. The situation needs to be set right before any more of those good folks escape. This task will not be easy. Once you begin with a rocky start, regaining the trust and confidence of your subordinates can be a Herculean task. But it’s not impossible. And, despite the obvious obstacles, we still have hope that Swanson will be able to rise to the occasion. And we will, of course, continue to monitor the situation at the office.

That said, I must agree with the commenter’s second point that the media has not done its job in handling and following up with the issues at the AG’s Office. I thought the Pioneer Press did an excellent job reporting the initial story, and Ruben Rosario had an excellent and classy column calling for Hatch to move on. However, as the commenter mentions, there was little follow up after Hatch left. The Star Tribune news coverage, on the other hand, has been anemic throughout, which is disappointing to say the least given that it is the state’s largest newspaper. The only time I recall the Star Tribune editorializing on the issues at the AG’s Office was in a rant by columnist Nick Coleman referring to Hatch throughout as “mad Mike” -- and that wasn’t even published until after Hatch announced he was leaving. (If the AG’s Office had been run by Republicans, one wonders whether the Star Tribune’s editorial board would have responded with such deafening silence.) Sadly, most of these events occurred before the Star Tribune substantially reduced its newsroom size, so staffing excuses are not available.

We at this blog and at Minnesota Lawyer will continue to keep a vigilant eye on what is happening at the AG’s Office while striving to give the office a fair chance to right itself. All of you who participate in this blog have been a valuable part of our efforts, and we encourage you to continue to keep us updated.