Thursday, June 23 2022

This is the third in a series of articles from the team at Cozen O’Connor State AG providing guidance on what U.S. businesses need to know in planning legal, regulatory and policy strategies to anticipate and respond to changes in the AG landscape. We go beyond the who-what-where of the election cycle and provide you with information to properly prepare for the election results. To read the first and second articles in our series, go here:

  1. State Attorney General Election Matters: Preparing for November 2022

  2. Past as future: past experience of MAs can shape their priorities and policies

The 2022 election cycle for state attorneys general is upon us, and the outcome of those elections will affect attorney and supervisory staff serving in AG offices across the country. In the 9 open-seat races, the name on the GA door will certainly be different in January 2023, and in today’s unstable political environment, that number could be much higher. At the same time, companies seeking to understand how an GM election (or post-election transition) might impact their business should consider not only the CEO position holder, but also the personnel serving in the current administration. The old adage that “the more things change, the more they stay the same” is popular for a reason. This is an apt description of the contribution of Continuity AG staff to the offices in which they work.

Understand the role of GA staff to understand the office

To fully appreciate the ability of AG staff to influence an incoming administration, companies must first understand the roles played by these individuals and the indelible imprint they leave on the offices they serve. They are often, if not exclusively, responsible for the daily operations of the office. They conduct investigations, interact with their counterparts in other AG offices and various federal agencies, litigate cases, respond to open case requests, and provide legal advice to other state agencies and colleagues. within the office. In other words, they know the most about how a particular division works and, in some areas (such as consumer protection or antitrust matters), how similar work is done by AG offices. in other states.

For companies trying to predict how an incoming AG might execute on the priorities he or she articulated during the campaign trail, they need look no further than the past. Rapid, tectonic shifts in the operation of an AG office are unusual, as this article will explain, though they can certainly happen, especially when a political party changes – as evidenced by staff turnover in Virginia. when Republican Jason Miyares replaced Democrat Mark Herring in 2022. Even with an increasingly politicized election atmosphere, the changes we often see after a transition are usually much more subtle — and sometimes quite slow. Internal reorganizations. An increase in inquiries of some type. Or the quiet settlement of certain claims. And it makes sense if you stop and think about it.

These people were hired to enforce or defend the law – and these laws rarely disappear after an election. State constitutions (which state AGs typically swear to uphold), ongoing investigations, litigation, and statutory responsibilities to other state agencies also endure. Could a new administration reorganize certain functions within the office? Sure. Is it possible to see more interest in some cases? Absoutely. But even in cases where priorities are realigned with a new administration, the execution of those priorities rests on the shoulders of GA staff. Those seeking to understand how an investigation might proceed, or what position a new AG might take on a particular issue, should begin by carefully considering how similar issues have been handled previously by AG staff in that particular office.

AG staff transcends administrations and party politics

While the number of political appointees varies from state to state, most incoming AGs handpick the people who will serve as their closest advisers. The titles of these positions vary from office to office, but generally they include someone who acts as the equivalent of a Deputy Chief (or General Counsel), Chief of Staff, a solicitor general, political advisers and a communications team. Many will report directly to the AG, and they often serve in what we call “the Front Office”.

However, the majority of AG personnel serving in a state AG are do not named politicians. These individuals work in various divisions, sections, or units that exist within the office, assigned to specific issues such as consumer protection, Medicaid fraud, or handling criminal appeals. Some will have developed significant expertise in their area(s) of practice by serving in several previous VG administrations.

Many of these people will be offered the opportunity to serve a new administration because of this expertise and experience with the office. Of course, how a new administration evaluates current AG staff will vary widely depending on the office, the state, the priorities of the incoming AG, and particularly if the transition involves a change of political party.

In a transition involving continuity in party affiliation, an incoming administration can work closely with the outgoing GA administration in the weeks following the election – both on personnel matters and on administrative matters. These transition teams may choose to only interview employees at the managerial level, with the expectation that any employee working for these individuals will be retained based on the manager’s recommendation or after a cursory personnel file review. of the employee. However, even a new GA from the same party may have different priorities or interests, which may further impact personnel decisions. In states where an election results in a change of party affiliation for office, the incoming administration may adopt a “hands-off” approach with existing AG staff until after inauguration. At this point, AGs supporting large offices in particular may take a similar approach of interviewing only management-level AG staff, as it is simply not possible to re-interview hundreds of employees. In smaller offices, however, a new administration may take a different or more personal approach, examining each senior level lawyer when determining how to allocate resources and priorities.

Staff members remain

Yet no matter what approach a new administration takes to familiarizing itself with staff, the reality is that most state AG offices experience limited turnover both before and immediately after an election. So why is this?

Concretely, staff retention is essential to the proper functioning of the office. Investigations must continue. Litigation deadlines must be respected. Public bodies must be notified. The proposed legislation needs to be reviewed. Lawsuits against the state must be defended. A massive turnover, either immediately before or after a transition in an administration, would bring the office’s operations to a halt.

But above all, institutional knowledge must be retained. A mass layoff would leave very few people to advise the new administration on how the office operates, why certain tasks are handled in a particular way and, more importantly, the potential risks of deviating from these practices.

In addition, replacing AG personnel with particular expertise in a given area is a time-consuming and costly undertaking. Competition in the job market is at an all-time high, especially for attorneys with litigation and regulatory experience essential to an attorney general’s office. State budgets can rarely be stretched to accommodate salaries offered by the private sector or even federal agencies. Therefore, the ability of MAs to recruit new employees can be severely limited. For this reason alone, companies should expect to see incoming administrations opt to retain more of their existing AG staff.

It would be a mistake for any outsider to underestimate the influence or experience of GA staff, including their ability to shape the execution of enforcement efforts and policy in general. Most incoming AGs will seek to retain the institutional knowledge held by these individuals – for their own benefit and that of their constituents. Therefore, at election time, as GAs come and go, the one thing that will likely be a constant is staff. It’s not only valuable, it’s essential to get to know them, as people and as professionals. They are essential to working smoothly through change and advancing business interests with an AG’s office.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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