Virginians have gotten all too used to the perennial cycle of campaign commercials that feature elected sheriffs and commonwealth's attorneys shilling for friends and partisan allies running for statewide or federal office. It's one thing for these elected officials to choose to spend their political capital that way. But this election cycle served up, for the first time in my memory, a campaign commercial in which current state employees, not elected officials, used their offices and titles to bolster their partisan advocacy for their once and, possibly, future boss.
Hoping to alleviate concerns among women voters prompted by press coverage of future Gov. Bob McDonnell's 1989 Regent University graduate thesis and its comments about working women, the McDonnell campaign ran a highly effective TV ad featuring, among others, two current state deputy attorneys general. In the commercial, the women speak highly of McDonnell's hiring and policy record as Virginia's attorney general, using their titles and positions to underscore their points.
The ad set a precedent for future campaigns — a precedent that is disturbing because of the implications for increasing politicization of the Office of the Attorney General, and because the ad opens the door to possible political intimidation of state employees in the future.
The Office of the Attorney General is not just another state agency. The attorney general heads up a public law firm that, among other things, serves as consumer counsel, provides legal advice to state agencies and officials, and represents us as taxpayers in many other respects. To protect the office from real or perceived conflicts of interest, longstanding tradition and policy imposed specific limits on the ability of employees to serve in other elected or appointed positions at any level of government. Employees were also counseled that both with respect to outside employment and volunteer activities, they should “recognize that the reputation of the Office of the Attorney General, and for attorneys, their professional responsibilities as well, follow the employee in all of his or her activities, whether public, private, paid or unpaid.”
Employees of the office of the attorney general, unlike most other state employees, are employees at will who can be fired without notice any time for any reason. The two employees in the McDonnell campaign commercial hold high-level positions in the office, positions that typically turn over with a change in administrations. I have no doubt that they were willing volunteers. But the precedent set by their appearance in the ad holds the possibility that future state employees may actually be required to participate in partisan political activities or feel they must do so if asked.
Participating as partisan advocates in political campaigns also could affect how such participants are perceived as supervisors by their colleagues, some of whom may not have supported the same candidate, and by their clients.
The deputy attorneys general who appeared in the campaign ad have as clients state employees, agency heads and cabinet officials who rely on their objectivity and professionalism. The deputies did not participate in the McDonnell commercial merely as private citizens; their very political utility depended on their testimonials being tied to their titles and positions, thereby linking the office's reputation to their actions. What impact will their partisan advocacy or that of future deputies have on the confidence of their clients? What does their participation say to citizens who depend on the office to represent them, without reference to political party, as consumer counsel or in criminal appeals, fair housing enforcement and other matters?
Federal and state workers whose jobs are substantially funded by federal dollars, would, at least, have been prohibited by the Hatch Act, in place since 1939, from using their official titles and positions in a political campaign ad. The Office of the Attorney General receives almost $6 million in federal funds for Medicaid fraud prosecutions and other purposes. One of the deputies in the ad oversees the legal work for a state transportation department that receives many millions in federal funds. Should it be OK for some leaders in the office to engage in partisan activity that might be prohibited if done by some other employees in the office or by clients that they represent? It is one thing for the elected attorney general to advocate for him or herself or for others. It is quite another thing for other state workers of the office to do so.
The federal Hatch Act (and similar state statutes) are understood to serve “valid and important” interests including promoting integrity and public confidence in government, and, as the U.S. Supreme Court ruled in Broderick v. Oklahoma, “attracting greater numbers of qualified people [to public employment] by insuring their job security, free from the vicissitudes of the elective process and by protecting them from ‘political extortion.'”
Watching the ad where two of the people's lawyers use their positions and titles to help make a political point makes me wonder whether it isn't time for Virginia to join the other states that have adopted “little Hatch Acts” to protect state employees and their work from partisan political pressures that, in Virginia, come around annually. S
Claire Guthrie GastaAñaga is owner and chief strategist at CG2 Consulting and is former chief deputy attorney general of Virginia.