The departure of Marc Dann from the attorney general's office gives Ohio the opportunity to re-evaluate what it wants from its chief legal officer and consider if guarantees are in place to provide for the basic adherence to the principles of good government, accountability and transparency by which the rest of state government must abide.

The reasons for Dann's fall had little to do with the attorney general's official duties, but that does not mean the policies and procedures that govern the office are in fine working order. In fact, I suggest that it is the tenets -- or their absence -- under which the office of the attorney general has been run for some time -- that contributed to Dann's rapid fall.

The Ohio attorney general operates with a level of independence that places it in a league of its own among Ohio's five constitutional statewide officers, the others being governor, secretary of state, auditor and treasurer. The office has an incredible amount of power to shape public policy and establish de facto policy and regulatory regimes without oversight from or even engagement with the General Assembly.

Furthermore, the attorney general has through the power of litigation the ability to extract hundreds of millions of dollars from private corporations in the form of lawsuit settlements or jury awards. Simply labeling the attorney general's litigation power for what it is -- enormous and feared -- is not a judgment on the merits of any litigation, but an acknowledgement of the unique position that the attorney general has.

Perhaps most troubling from a constitutional point of view, the attorney general has the power to distribute these funds as he or she sees fit, executing the power of the purse usually reserved for the legislature.

Woven through all of these authorities is the attorney general's ability to bestow favors on political friends and allies through special-counsel contracts. These are no-bid sweetheart deals to private lawyers who are retained by the state to conduct collections-work, provide specialized legal expertise or conduct litigation in lieu of fees in exchange for a cut of any settlement or jury award they bring in.

Dann, well-aware of these powers, rode into office on a campaign that criticized previous officeholders for their conduct in office and pledged to run a kinder, gentler, cleaner, brighter attorney general's office. The reality turned out far different.

Moving forward from Dann, we have only ourselves to blame if -- and most assuredly when -- history repeats itself. Sweeping Dann under the rug and dismissing him as just a bad seed, and pledging to find the right person for the office is not a fix but an expression of naiveté.

Ohio's attorney general, and every state's attorney general, has assumed a more-aggressive, activist role through civil litigation against alleged corporate wrongdoing in pursuit of extra-legislative policy and regulatory goals. Thus, the laws and policies that govern the office must change.

 

The way in which the attorney general awards special-counsel contracts must be brought into line with Ohio laws governing the awarding of other large contracts. That means using standard, widely accepted competitive bidding and strict oversight by the state Controlling Board, a hybrid of the executive and legislative branches that overseas major state expenditures.

Contracts for collections or specialized legal expertise could be exempted from competitive bidding, but the contingency-fee contracts that bring with them the potential for millions or tens of millions of dollars in legal fees must be awarded not according to the rules of the smoke-filled backroom but with the goal of giving the best value to the taxpayer in an open, competitive process.

When the attorney general wins a big case, the money needs to go to the state treasury, not the attorney general's office account. Funds earned through litigation are the property of the state and should be treated like all other revenue. That revenue is appropriated according to the laws enacted by the General Assembly and by the biennial budget process.

We should be doing everything possible to make sure the General Assembly has the ability to fully fund state priorities. If the attorney general is allowed to squirrel away funds to be distributed according to a private list of priorities, then there is little guarantee that state priorities are being met or that funds are being managed or spent in the best way.

The General Assembly will do well to learn from Dann's fall and enact fundamental reforms, or the next scandal in the attorney general's office will not be blamed on the attorney general alone.

Jack Boyle is Ohio director of Americans for Prosperity, a Washington-based organization advocating free markets and limited government..

jboyle@afphq.org