Top attorney in state works for office, not for governor

John Havelock

The appointment of a new Alaska attorney general is now imminent, if it has not happened between the writing of this article and the printing of it. So, welcome to the new state legal chief while wishing well to his precursor returned to private practice in Fairbanks.

There has been occasional misunderstanding of the role of the attorney general, sometimes by a governor. Gov. Parnell, a lawyer by training himself, is less likely to misunderstand that role. He will understand the distinction: The attorney general does not work for the person of the governor; he works for the Office of the Governor. A wise governor picks an attorney general for her professional competence, as one would a doctor, not for being a partisan pal.

This issue came up famously in 1973 in the federal context, in which the attorney general is also appointed by the chief executive. President Nixon demanded that Attorney General Archibald Cox fire Special Prosecutor Elliott Richardson, who was investigating the Watergate break-in. Cox refused and resigned. Nixon then asked William Ruckelshaus, the deputy attorney general. He too resigned in protest, refusing to fire Richardson.

This left Robert Bork to take on the less honorable, standby role. Bork believed (correctly) that Nixon had the power to direct Richardson's termination and so proceeded to fire him. While it may have been legal to fire Richardson, it was not all that wise personally. Bork's action weighed in against him later when he was nominated for the Supreme Court.

A similar issue came up a few years later in 1985 when, proceeding on information that Gov. Bill Sheffield had illegally favored a political supporter with a state lease opportunity, Alaska Attorney General Norman Gorsuch took the matter to a grand jury, which recommended that Gov. Sheffield face impeachment proceedings. Gov. Sheffield, prudently, did not fire Gorsuch and his deputy Dan Hickey until the impeachment was turned down by the committee of reference. But Sheffield was not re-elected.

The attorney general's duty lies first to the oath of office "that I will support and defend the Constitution of the United States and the Constitution of the State of Alaska, and that I will faithfully discharge my duties as Attorney General to the best of my ability."

"All public officers ..." of the state are required to take the same oath as the attorney general. The professional independence of each government employee is the professional independence of the attorney general, writ large.

Under Section 1 of Article 3 of the Alaska Constitution, the Executive Article, "The executive power of the State is vested in the governor." But that awesome statement of power is limited by other sections of the constitution, including the oath of office. This oath underlines a huge distinction from many private sector jobs where you work for the man, not the office.

Under Article 3, Section 22 of the Alaska Constitution, state government is organized under not more than 20 departments, each headed by a commissioner, one of whom heads the Department of Law and is called the attorney general. While a commissioner is accountable to the governor, like other employees she is also accountable to the law and to applicable ethical codes that may include one or more professional codes. For advice on the law, the commissioner must follow the advice of the attorney general. Thus, though personal loyalty has its place, the commissioner and the department staff are first responsible not to the governor but to the office of the governor even when tensions occur between prescribed duties and the governor's political agenda.

To take a current example, a commissioner of Revenue or Natural Resources must report on facts and their implications regarding oil revenue even if a governor's agenda may be partially in conflict. Although a governor is in charge, as is a president of the United States, each finds in due course that what is called "the bureaucracy," familiar with the complexity of the law, acts almost like a fourth branch of government restraining the power of the chief executive.

John Havelock served as attorney general to Alaska Gov. Bill Egan.

John Havelock