Power of Attorney
As the state’s chief legal counsel, Lori Swanson has tangled with corporate giants and targeted businesses that prey on the elderly. She has pushed for legislation that helps vets and disadvantaged kids, and she has declared herself a champion of “everyday people.” So why do so many lawyers think she’s destroying the Office of the Attorney General?
(page 2 of 2)
Over the next several months, the departures continued and the discontent grew. In February 2008, Susan Damon and two assistant attorneys general, Daniel Goldberg and Amy Lawler, wrote their boss a letter on behalf of the union organizing committee, a group of roughly 10 staff attorneys. The letter requested that Swanson recognize “the will of the staff to be represented by a labor union” and meet with them to discuss terms and conditions of employment, including “job stability and security, just cause for discipline and discharge, and our ability to perform our required professional duties free from any undue political influence.”
But Swanson was out with the flu the day the letter was delivered. When she didn’t respond after two days, the union organizers upped the ante by posting the letter on a website. Swanson reacted swiftly. The next week she called in two retired judges, Miles Lord and Jonathan Lebedoff, to survey the staff attorneys on whether they supported the Damon-Goldberg-Lawler letter. Thirty said the three did speak for them, 14 refused to vote, and 52 said they supported the attorney general, according to previously published figures. The balance was not polled. Swanson viewed the outcome as a vote of confidence for her; the union organizers, noting that Lord and Lebedoff were political supporters of Swanson, rejected the survey’s results.
Swanson circulated a staff memo via e-mail that characterized the online publication of the union’s letter to her as “a political swipe.” She wrote, “I strongly disagree with many of the accusations.” In a letter written directly to Damon, Goldberg, and Lawler, she scolded them for “your personal and public attacks on this Office and the good work we are doing.” It accused them of creating a “public spectacle” and of bringing “embarrassment to this Office.”
A month later, Lawler, a Harvard Law School graduate hired by Swanson, spoke with a reporter from MinnPost.com for an article about the discord in the attorney general’s office. She questioned her boss’s ethics, saying Swanson had instructed her to find a defendant to sue over a consumer issue that had recently cropped up in the news. Shortly after the article was published, Lawler (who declined comment for this article) was informed that she had breached an office policy that all media interviews be approved in advance. She was placed on unpaid administrative leave while Thomas Mengler, dean of the University of St. Thomas Law School, investigated the matter. In late May, after Mengler concluded that there wasn’t enough evidence to substantiate Lawler’s claims, Swanson immediately fired Lawler and lodged a complaint against her with the state’s Lawyers Professional Responsibility Board. (The board later admonished Lawler.)
Former staffers say the Lawler incident was only the most visible example of Swanson’s tendency to deal with critics by taking away their cases, transferring them to undesirable divisions, or demoting them. They note that Swanson offered no reason for firing one union organizer, attorney Kari Jo Ferguson, in March 2007. And she terminated another, investigator Jody Wahl, by eliminating her position in January 2008. “It seemed more and more Lori was trying to figure out who was loyal to her because only she could decide the right thing to do,” says Wahl, who had worked in the attorney general’s office for 23 years. “If she perceived you weren’t personally loyal to her, even if you were loyal to the work of the attorney general’s office, she was uncomfortable.”
For her part, Swanson says that complaints about staff dissatisfaction have been overblown, and she accuses Eliot Seide, executive director of AFSCME’s Council 5, of pushing an agenda and manufacturing complaints in an effort to try to organize the office. “They, in order to form a union, need to stir the pot and try to create turmoil in the office,” she says, “so that’s sort of what they’ve been doing.”
But Seide says the staffers in Swanson’s office contacted him first—not vice versa. Nobody from the outside needed to stir the pot. “Unions don’t just happen,” Susan Damon points out. “There’s a problem in the workplace driving someone seeking a solution. The union effort arose from serious issues with the management of the office.”
Even many not associated with the union effort agree that workplace morale has sunk to a new low in the last year. But Swanson’s supporters seem unconcerned by the turnover. “Change is always good,” Olson, the deputy attorney general, says. “I don’t believe anyone has left this office because of poor morale.”
It’s really not about the union,” says Jim Nobles, the state’s legislative auditor. “There are much bigger issues here.”
Nobles, who has conducted nonpartisan audits and evaluations of government agencies for the Legislature since 1983, began scrutinizing goings-on in the attorney general’s office last spring. The review was launched after state representative Steve Simon, who had once worked in the office, approached his colleagues on the Legislative Audit Commission with some “serious and troubling” allegations about practices at his old workplace. Simon told the 12-person committee that he had heard complaints from attorneys working under Hatch and Swanson that they had felt pressured to act unethically. The charges included offering unsound advice to clients, inserting unsubstantiated information in affidavits, and finding defendants to justify filing certain lawsuits, among other things. The commission directed Nobles to conduct a “preliminary assessment” to determine whether the allegations warranted a broader investigation. Members were particularly concerned about charges that officials had misused public funds. They also expressly directed Nobles to steer clear of the union dispute.
Nobles issued his report in June. He stated that his office had interviewed seven people associated with the attorney general’s office and found that the events related to the allegations had indeed occurred and that individuals “felt pressured to act inappropriately.” But the witnesses “also stated that no inappropriate, unethical, or illegal actions resulted from the pressure.” In other words, the attorney general’s office might be in disarray, but no laws had been broken. Nobles’s duties were essentially complete. (One matter uncovered during the preliminary assessment remains under investigation: whether the office misspent federal funds intended to fight Medicaid fraud.)
Still, Nobles red-flagged one issue. The “pressures” in the office, he wrote, were exacerbated by the fact that attorneys in the office could be “dismissed or demoted ‘at will.’” Attorneys could be fired without reason or cause. “The question for the Legislature to consider is whether the legal services provided by the Attorney General’s Office require that all of the attorneys in the office serve ‘at the pleasure’ of the Attorney General,” Nobles wrote in his report.
He remains concerned. “I think the Legislature and citizens have a legitimate concern whether the [attorney general’s] office is being managed in a way that state agencies are getting sound, nonpartisan legal advice in running their departments,” he says. “I have no basis to conclude that they’re not being provided with sound advice. I’m just saying it’s a legitimate question for the Legislature to pursue.”
The greatest cost of the turnover under Swanson isn’t bruised egos or hurt feelings; it’s the diminished quality of legal representation the attorney general’s office is able to provide. “Whether it be public utilities or human services or health, you’ve got a very specific body of law that governs that area, so you really want people who are experts in those areas of law,” says David Schultz, a professor who teaches law and business classes at Hamline University in St. Paul. “As attorney general, you want to recruit people who will stay in your office and who, over a number of years, will develop expertise in different areas of law, so that the state can write regulations, write procedures, perform services, and do its job.”
The loss of key staff affects, among other things, the office’s ability to pursue important lawsuits. In 2003, Hatch sued GlaxoSmithKline, alleging the company was conspiring with other drug manufacturers to boycott Canadian pharmacies exporting low-cost prescription drugs to the United States. The case was set for discovery, then trial, but the three lawyers who had handled the case from the onset left within months of Swanson taking office. Two more attorneys added to the case also left. In November 2007, Swanson settled the case for nothing, not even asking for compensation to cover the office’s costs and attorney fees, which were substantial after four years of litigation.
“They dumped the case because there were no lawyers left who could handle it,” says Paul Civello, a former manager of the Medicaid-fraud division who was initially assigned to the case and who departed the office in frustration in 2007. “Needless to say, Swanson did not hold a press conference to announce this settlement.”
Swanson says the settlement was prompted by the outcomes of similar cases filed across the country, which did not bode well for Minnesota’s case. “We were dealt a very, very unfavorable ruling by the federal courts in connection with this private litigation,” she explains.
The attorney general’s office also serves as the chief legal counsel for all state agencies. “That office is unique in our democratic system. It is the only office that touches all three branches of government,” says former attorney general Skip Humphrey. “In Minnesota, there’s just one office that handles the legal business, that can go to court, that can present the positions before the courts, and that is the attorney general’s office.”
Ideally, when it comes to administrative matters, the attorney general’s office helps state agencies avoid litigation. To that end, the office provides proactive counsel intended to help administrative departments avoid future litigation. Attorneys once spent roughly 70 percent of their time offering such advice, say agency personnel. Increasingly, however, the number of hours devoted to such counsel has dwindled. “There’s more time taken to ramp up and train new people,” says Anne Barry, chief compliance officer for the Department of Human Services, one of the state’s largest agencies. “Their attorney skills are not in question. Their competency is not in question. It’s the depth with which they understand our programs that requires additional work.”
It will take years for new hires to replace the lost institutional memory, specialized skills, and accumulated wisdom of the departing attorneys, says Civello. “Those who have left include some of the best, brightest, most dedicated attorneys the attorney general’s office had. They are irreplaceable,” he says. “No law firm that has suffered the loss of so many talented, experienced lawyers in so short a time could claim to be well-managed and functioning.”
The hour has passed. Lori Swanson has talked at length about her position as the people’s attorney. “The attorney general should be the people’s lawyer,” she says. “The attorney general should help level the playing field for ordinary people. Having that kind of citizen advocacy, to me, is highly, highly important. It’s why I’m here. It’s why I ran: to be able to stand up for the ordinary citizen.”
She is not concerned about the morale in her office, she says, dismissing union organizers as “dissidents.” She describes her current staff as “phenomenal,” and she claims that many of the attorneys who have left have taken jobs where the pay is higher or the workload is easier. “This is not a good place for someone to work if they’re looking for a soft, cushy job,” she says.
Swanson stands up. The interview is over. “I don’t spend a minute of my day on the bulk of what you just asked me about,” Swanson says as she moves toward the door. “I’ve got a great job, a great office, a great team. I think we’re doing a great job for the public, and that’s what I’m about.”
She walks out and closes the door behind her.
John Rosengren, a Minneapolis writer, profiled attorney Brian O’Neill in the March 2008 issue of Minnesota Monthly.