End Games

I've covered many of the allegations, so where do we go from here in le affaire du Swanson? If you read between the lines of today's MinnPost story you get a hint.

One main issue in the Swanson controversy is the recent effort to unionize the attorney general's office. (Rep. Steve) Simon repeatedly emphasized that any investigation should steer well clear of union shenanigans and retribution, though he and others noted that a movement to unionize could indicate turmoil in a workplace.(Legislative Auditor Jim) Nobles, for his part, assured members that his investigation would focus solely on allegations of misuse of the office, including allegedly falsified affidavits and timesheets, pressuring attorneys to give bad advice to clients and asking employees to post positive comments on a blog devoted to recounting the atmosphere in the office. Nobles, who is known for his objectivity and thoroughness, said he could very well find nothing to the allegations, but that an inquiry could be helpful to "clear the air.""I understand you're anxious," Nobles told the commission. "It is not my intention to have a broad-ranging fishing expedition" and that he would exclude "labor issues, personality issues and management issues" from his investigation. He did, however, say that he could and would use subpoena power if necessary...

All of this echos what Rep. Beard said on the radio on Saturday...that great pains would be taken to make sure that this is in no way construed to be witch hunt.

All of which raises the question: Why didn't Nobles already do a preliminary inquiry on his own? Part of it is that he wanted to have a "discussion" with the members of the commission, knowing that the matter was delicate. But the other part is that the legislative auditor really is limited, to some degree, to financial audits. Initially, it wasn't clear if the allegations against Swanson rose to the level of Nobles' purview."This has been an unfolding issue, and it was my choice not to get involved," Nobles said, adding that the blogging on company time and the alleged apparent doctoring of timesheets caught his attention — that in the "last day or two" he began wondering about "misuse of state resources" that would allow him to use his authority to open an inquiry.When asked if he knew how long an investigation might take, Nobles simply said, "No." For now, there's just a "preliminary assessment" that he said will start Monday."A preliminary assessment takes weeks, not months, but weeks," Nobles concluded. "A full-blown investigation takes months."

But why would anyone consider this "preliminary assessment" to be a witch hunt. Rep. Beard explains...

Let me tell you what gives me pause on this and why we measured our response with the Legislative Auditor...Lori Swanson is a mentor (ed - I suspect he meant mentee) and clone of Mike Hatch. There is no love lost between Mike Hatch and another person who wanted that seat - Matt Entenza and Mr. Entenza is pretty tight with this particular AFSCME unit...that's after the attorneys...it's really a strange combination until you start doing the political math behind the scenes which then guys makes you think that these allegations may be tainted as these union guys play hardball...they are not beyond character assassination and smearing people...just to play devil's advocate...however when Ms. Lawler stepped forward she put her professional reputation in harms way...that is not something you usually do just to get a union organized your shop...She is liable for disbarment and sentencing...I mean she could be in deep professional trouble if these things are true and any of it splashes back on her. So that is why we all took a deep breath and said "whoa" this
seems to be going beyond just the usual turf war between a couple of union locals and Matt Entenza and Ms. Swanson so...prepare yourself for that...

The interview then closes with what could be a hint of things to come IF the allegations have any substance behind them.

King Banaian: Well I'd say you just brought this up one more level of "interestingness" if that is a word...
Rep. Mike Beard:Let me share one more thought with you that we did not talk about yesterday (Friday)...if indeed the Auditor finds there has been mischief and professional malfeasance and misrepresentation and breach of professional ethics, we have a whole new ballgame that we have never had before. We could actually have attorneys in the AG's office, including up to the AG herself, who could be disbarred,
sanctioned and then what do we do...how do we take care of that dance?

How indeed do we proceed if the evidence shows that the state's top prosecutor has been engaging in illegal activities?

This is not about politics and parties....this is about right and wrong - something I think that all of us can get behind.

The next few weeks are going to be grueling ones for the AG and her staff. Let us hope that the truth of the matter does come out in this. Then maybe the integrity of the office can be restored.

The Charges...

On Saturday afternoon, Rep. Mike Beard (R-Shakopee) was on AM 1280's Northern Alliance Radio Network's "The Final Word" talking about the Legislative Auditor Committee's report that Legislative Auditor Jim Nobels would be looking into allegations of mis-management in the AG's office. Rep. Beard went to great lengths to remind listeners that the LA investigation was NOT about the alleged unionization issues...instead, Rep Beard said that the investigation was geared around the allegations of ethics violations that were brought up in Amy Lawler's letter.

In this case, we were really reluctant to get into telling another agency, especially another Constitutional officer who is completely seperate from the Legislature how to run his or her office. If she wants to make people mad and lead to union organization, well I get that's...that's her business - that's not ours. But what began to arise was a point where one of the attorneys came forward and said I was asked to, and in fact many attorneys were demanded that we actually add to...what's the word I'm looking for...affidavits, to file lawsuits before we actually had probable cause to do so just so it could make the 10 o'clock news, take sworn affidavits and add to them after the deputation portion has been finished..and these are really grave ethical lapses...They are very serious charges...and it went so far that the one young attorney, Amy Lawler, and I don't know her and I don't know that young woman I have only seen her work and that letter that she sent to each of our offices...where she said I have been suspended because I raised these issues, this has nothing to do with the unionization effort, this has to do with being asked to misrepresent, lie, cheat and steal...that's when it got even the DFLers attention on the Legislative Audit Commission...

The charges, as laid out by Ms. Lawler in her letter, are as follows:

• being hired with the explicit instruction that the position required loyalty to Attorney General Swanson, and that those advocating for the union were not being loyal.
• being ordered to violate a special master's order.
• being instruction by a supervisor to add statements to a consumer's affidavit that the attorney had reason to believe the consumer did not actually say. The attorney refused, and later resigned.
• being ordered to issue a civil investigative demand against a company when the attorney did not have reasonable cause to believe the company had violated the law. The attorney refused, and later resigned.
• being asked by a supervisor to make a post on the Minnesota Lawyer blog, during the workday from office computers, lauding the Swanson administration. On one specific occasion, a post praising the office appeared under an attorney's name during a time when the attorney was physically in a meeting elsewhere, and could not have made such a post. That attorney later resigned.
• being ordered to tell consumers that they were being invited to meet with the attorney general, and being directed not to tell the consumers that the event was also a press conference.
• being told to give an agency client advice that would not have been in the client's best interest and was not legally sound. The attorney refused and later resigned.
• an instance in which a supervisor inserted information into affidavits that was acutally false; the assistant attorney general removed these statements, and was them subjected to retaliation.

Emphasis added. These are serious charges and if found to be accurate could actually cause Ms. Lawler to loose HER law license should it be found that she did any of these things...even if it were under duress.

The next million dollar question is how to proceed. Rep. Beard continues...

...how then do we proceed with sticking our noses into another duly elected representatives business and investigating her office...one of the things we were concerned about was establishing a precident...taking a vote and ordering him (Auditor Nobels) to have a look...and the Auditor explained to us that he has looked into the Attorney Generals office 3 times already...in 2003...there was that strange deal with American Bankers out of Florida...that Atty General Mike Hatch went after... on two other cases since then, the Legislative Auditor did look into matters in the Attorney Generals office...

OK - so precident IS there for the Legislative Auditor has jurisdiction....what latitude does he have...is this going to be a witch hunt?

...on a bi-partisan basis we agreed that what we didn't want was the disease that seems to afflict Washington where a new administration comes in and Congress immediately enables a special investivator, with a bunch of money and a staff and says happy hunting go find some trouble...we didn't want that to happen so we specifically told Mr. Nobels, do not, if you get into matters where it appears to be a union/management disagreement - that's not our business here..there are processes in place and rules on how those things play out. However if we are getting into a breach of professional ethics, like was alleged with altering affidavits after they have been sworn and filed, if we are into situations where people are ordered to and indeed did file frivilous lawsuits before there was just cause for doing so...if you find these things then Mr. Nobels we trust you to continue to look...we are not giving you license for a witch hunt...

Of course, the next question is if Mr. Nobels does find proof that this happened, who prosecutes the top lawyer in the state?

J'accuse!

While looking for examples of coverage of the allegations against AG Lori Swanson versus coverage of US AG Rachel Paulose I found this post from the Minnesota Lawyer Blog. The comments left mirror many of the allegations in Ms. Lawler's letter to Deputy Olson in her letter dated March 14 (and covered in detail by Gary Gross at LFR). The comments are all anonymous, but given what we know so far it is no secret why!

Anonymous said...
I am one of the attorneys who left the AGO for some of the reasons/concerns raised by Ms. Lawler. It is common knowledge in the Office that both Lori Swanson, as well as her predecessor, would often first decide what kind of lawsuits they wanted to bring (commonly based on whatever topic is hot in the media or being pursued by AGs in other states), assume that there MUST be someone operating in Minnesota to sue in this area, direct the staff attorneys to find a party to sue (or give them the names of parties to sue) and file a complaint within X time period and then orchestrate a big media splash and press conference to publicize the matter. While some people might applaud this as being "proactive," I had the same ethical concerns expressed by Ms. Lawler. Of course, my response to these questionable tactics was to simply leave the Office rather than "stir the pot" so to speak and be subject to involuntary reassignment or other retaliation. It is no wonder that the consumer enforcement division at the AGO (now "complex litigation") had 100% turnover in staff attorneys AND managers while I was employed at the Office. Now the staff attorneys who make up that division are primarily very young lawyers who don't have the experience or courage to challenge or question what they are being told to do, with the exception of Ms. Lawler. Kudos to Ms. Lawler for speaking out even though it will obviously cost her her job.

It is sad that the latest public vetting of the problems at the AGO aren't going to change anything (sorry Mr. Cohen). Believe me when I say that Swanson et al. have convinced themselves that they aren't doing anything wrong despite the continued hemorrhaging of attorneys and negative publicity and will defend their tactics to the death (otherwise known as the 2010 election year).

I would say that "hemorrhaging" is the correct term. According to Ms. Lawlers letter (and confirmed with sources close to the pending investigation) 52 lawyers have left the AGO since Lori Swanson took over. Given that the AGO employed 126 lawyers, that means that roughly 41% of the lawyers in that office let. That is a far greater percentage than left the US AGO which is what led to the initial allegations against Rachel Paulose.

Anonymous said...
Mr. Cohen--Having worked in the Minnesota AGO for several years (but no longer), and having worked on multistate cases, I appreciate what you are saying. AGs, like all politicians, prefer favorable press, and I agree that they sometimes may use less than "best practices" in terms of how they pick what cases to file, if they think they can get good press as a result.
However, I also think that Hatch and Swanson have taken that approach to a whole new level, and not a better one. Their attitude towards cases, in my observation, is much like their attitude towards their attorney staff--we were all interchangeable, like cogs in a wheel. And if one cog happened to manifest any independent thought, judgment or to protest (like Ms. Lawler), then the response was to simply remove the offending cog (or get it to quit) and replace it with another one that would do what it was told to do.
All too often, the Hatch and Swanson regimes have the same cavalier, wholly self-serving approach to case management--once the press glamour wore off on a case (which pretty much happened the day it was filed), then upper management lost interest, tended to not want to put appropriate resources towards it, and often drove the case towards settlement to just get rid of it. This didn't happen every single time, of course, but it happened way too often.
And that's what I hope people understand about this union issue--it's not just an employment law issue, as one high-ranking DFL'er has reportedly stated, but it's an issue about the quality of legal services that the State of Minnesota is getting from its own, in-house legal staff. Because if the staff attorneys aren't allowed to act like attorneys and exercise their professional judgment on behalf of their "client," which ultimately, is state agencies and the people of Minnesota, then the people aren't being served. No matter how many cases the AG files in a month.

Emphasis added. These are questions that seem to be getting asked only on blogs. That is what I was getting at in my last post. There are some serious questions being raised and our local media is curiously silent - someone needs to find out why.

If these allegations are indicative of the troubles at the AGO, then a new set of questions arise. How far down the managerial chain does this attitude go? If it is indicative of all of upper management, then who prosecutes this case? For these are the kinds of cases the AGO should be investigating!

Swanson-Gate To Be Investigated

Another True North Exclusive

Earlier this morning, the bi-partisan State Legislative Audit Committee (made up of Senators and Representatives including SD 35's own Sen. Claire Robling and Rep. Mike Beard) announced what Gary Gross hinted at in his post last night. They are requesting that the non-partisan Legislative Auditor look into allegations that Attorney General Swanson engaged in possibly illegal union busting activities. Michael Brodkorb and Drew Emmer have been leading the charge from the blogosphere and have done a ton of good investigation into these allegations. Keep an eye on their respective blogs for more details as they come to light.