Should the attorney general be appointed by the chief executive of the state? Or should states continue to elect their lead legal adviser and prosecutor?
Utah, along with forty-three other states, elects the state’s attorney general in a general election along side other statewide offices, such as governor, lieutenant governor, and so on. The attorney general’s job, according to the office’s site, is to “enforce the law, provide counsel to state agencies and public officials, to work with law enforcement and protect the interests of Utah, its people, environment and resources.”
Mark Shurtleff, Utah Attorney General
Utah’s current attorney general is Mark Shurtleff, first elected in 2000 and later reelected in 2004 and 2008, the first AG in Utah history to receive three terms. Each time, he has been reelected by large margins, walking away with about 69% of the vote in 2008.
Despite this level of popularity, though, Shurtleff has not won everyone’s friendship. Further, his willingness to take campaign contributions from groups that were in the midst of prosecution has raised questions about his objectivity.
One example of this was reported in the Salt Lake City Weekly story “Called Into Question.” A call center that pushed questionable real estate products, Mentoring for America (or MOA) was investigated and cited between 2004 and 2007 for because it “promised unrealistic guarantees to customers, sold them programs they couldn’t use and otherwise conducted deceptive trade practices.” In 2008, it was under investigation, again.
Around the same time, Shurtleff received $20,000 in donations to his campaign. According to City Weekly:
…on Jan. 16, 2008, almost a month after it received its most recent charges from the state, MOA contributed $20,000 to Attorney General Mark Shurtleff’s 2008 re-election campaign. Three months after the charges were dropped by the Utah Division of Consumer Protection, Shurtleff would bank another $10,000 from the company, according to MOA’s PAC report.
In total, the Shurtleff campaign received $187,000 in donations from seven Utah call centers in 2008, six of which were under investigation by the Division of Consumer Protection. The litany of complaints against MOA, and the slap on the hand that it received, is heartbreaking.
When asked about the conflict of interest created by receiving donations from people and companies that are under investigation, Shurtleff was frank and honest: it’s complicated and it’s burdensome.
He said starting to draw lines among legal donors might create a need to do background checks on all donors. “I couldn’t take money from individuals without a background check,” he said.
Shurtleff also said that he’s never had a problem prosecuting donors.
“I have prosecuted and sued companies that have given me money,” he said. “Despite all the innuendo and rumors … there has never been and never will be a documented case of pay-to-play, tit-for-tat” favors for contributions.
The Idea: Appoint the Attorney General
Regardless of Shurtleff’s intent, it has raised the question about whether the office should stay elective or whether it should be made appointive. Utah State Senator Steve Urquhart of St. George recently floated the idea that–to allow the attorney general to avoid the appearance of impropriety due to campaign donations–the position should be appointed by the governor, similar to how the President appoints the U.S. Attorney General.
Not only would the state attorney general be free from the need to collect campaign donations, but would also work in closer cooperation with the Governor in setting priorities.
The flaw in the idea, as Shurtleff quickly pointed out, is that the attorney general needs to be a check on the executive branch, as well. By limiting the attorney general’s independence–making it responsive to the governor and the legislature instead of voters–changes the nature of the prosecutor’s office to little more than corporate counsel to the Governor.
“If there’s any misdeed or malfeasance in the executive branch then I’m responsible to the people to take action,” Shurtleff said.
Public Policy? Or a Grudge?
If this were just a policy discussion, then Sen. Urquhart would have had the legislative office attorneys look at it, he’d propose a constitutional amendment (which is what the change would require), and the state legislature would have voted on it next year.
But it’s not just a policy discussion. Apparently Steve and Mark don’t get along very well. The attorney general went ad hominem and attributed Sen. Urquhart’s suggestion to personal ambition, not public policy.
“We know he has an interest in this job,” Shurtleff said, adding Urquhart’s only hope would be through an appointment. “I think he can’t get elected statewide.”
Never one to miss an opportunity, Sen. Urquhart had some fun with Shurtleff’s snark.
Disbanding Urq4AG exploratory committee (whoever you no-show losers were). But, man!, the desert bar is awesome today! #Urq4AG
— Steve Urquhart (@SenatorSteveU) April 13, 2011
Jabs and accidental tweets aside, the question remains: should the attorney general be an independent elected official or should he, as in the federal system, be appointed?
Elected or Appointed, the Attorney General Should Be Impartial
Both options have merits that merit consideration and with the race to replace Mark Shurtleff kicking off this year, voters should closely examine the candidates for their willingness to maintain not only independence, but impartiality. Candidates for attorney general should be asked who their donors are and how they will be independent from influence by those donors.
While Shurtleff is correct to note that statewide races are expensive, it is also notable that he has won each race, including his first election, by margins more than 20 percent higher than his Democratic opponents. It’s hard to justify taking money from questionable donors when clearly there is not a need for it.
Further, the chief prosecutor should be above suspicion. Taking so much money from questionable donors should result in concerns by voters about the ability of the attorney general to exercise prosecutorial discretion in voters’ interests, not his own. Whether Shurtleff acts with impartiality or not becomes a moot point when so much money is accepted from so many parties that should be receiving the full inspection of the state’s chief prosecutor.
For more in the press on this issue, see also:
- Standard-Examiner: “Don’t monkey with Utah’s AG”
- Examiner.com: “Legislator suggests appointing Utah’s district attorney”
- Salt Lake Tribune: “Proposal: Appoint Utah’s attorney general”
- Deseret News: “Shurtleff tells Bennett to file complaint”
- City Weekly: “Called into Question”
- Lawmaker wants to study appointing state’s attorney general ()
- Governor Herbert “isn’t an attorney.” (lawafterthebar.wordpress.com)
- AG’s Office accused of abusing investigative powers ()
- Utah still missing a permanent federal prosecutor? (lawafterthebar.wordpress.com)
That is the question: discuss.
Structural balance refers to the matching of ongoing expenditures with ongoing revenues. If revenues equal or exceed expenditures, structural balance is achieved. If expenditures exceed revenues, structural imbalance occurs.
Before the Great Recession, Utah achieved structural balance. The fiscal 2006 surpluses were $241 million. For fiscal year 2007 that ended last June, surpluses were $308 million in the two main tax funds, the General Fund and the Education Fund.
In 2011 state revenues do not equal or exceed expenditures. In fact, the state is an estimated $313 million dollars short of achieving structural balance and that does not include the high growth areas of the budget such as Medicaid, public & higher education.