Public trust in the attorney general's office is at an all time low due to the allegations of corruption encircling former Attorney General Mark Shurtleff and his successor, John Swallow. Potential impeachment proceedings notwithstanding, there are several options the Legislature should consider to help restore public trust in the role of attorney general.
First, the Legislature should consider amending the Utah Constitution to make the attorney general an appointed, rather than elected, position. According to a poll released this week by Brigham Young University's Center for the Study of Elections and Democracy, nine out of 10 Utahns believe that the attorney general "should not take campaign contributions from businesses he is supposed to regulate." These poll results signal a deep concern that campaign donations to an attorney general candidate could improperly influence the enforcement of the law. As the chief law enforcement officer, the attorney general is the legal watchdog for all criminal activity in the Utah. Therefore, every campaign contribution to an attorney general candidate can raise questions of impropriety.
Appointing, rather than electing, Utah's attorney general could help alleviate these concerns. While there are certainly tradeoffs with every approach (for example, an appointed attorney general might be subjected to undue political pressure from a governor), the Legislature should carefully examine the appointment option. The existing appointment process for Utah judges works exceptionally well, and a similar process could be applied to the selection of attorney general.
Second, the Legislature should consider creating a paid administrative leave process for the attorney general should he/she become the subject of a formal investigation. When a police officer is involved in a shooting, he or she is automatically placed on paid administrative leave pending an investigation into the incident. In the vast majority of cases, the officer's conduct is justified and the officer returns to active duty. This process protects the integrity of our law enforcement community and their relationship of trust with the public.
It may make sense to apply a similar process to the chief law enforcement officer of the state. The BYU poll reports that 60 percent of Utahns do not believe Swallow "can still be effective as attorney general." Yet Swallow has repeatedly asked for the public to withhold judgment until the completion of the investigations into his conduct. Swallow chose not to place himself on administrative leave, and it is unclear if Utah law allows him to do so. A process that automatically places the attorney general on administrative leave when under official investigation might have mitigated much of the public angst regarding this situation.
Finally, the Legislature should consider changing state law to require legislative approval for all contingency fee arrangements proposed by the attorney general's office. In 2008, the attorney general's office awarded a lucrative legal case to the law firm of Siegfried & Jensen to recover Medicaid funds from drug manufacturers. The case was awarded on a contingency fee basis, and Siegfried & Jensen collected millions of dollars in fees from the state's financial settlement. This fee arrangement became a campaign issue in the 2008 attorney general's race when Shurtleff's Democratic opponent accused him of a quid pro quo arrangement with Siegfried & Jensen because Shurtleff's daughter worked at the firm and partners of the firm had generously donated to his campaign. The fee arrangement with Siegfried & Jensen might have been entirely appropriate, but the other circumstances raise doubts about the contract. A legislative review process for contingency fee arrangements proposed by the attorney general's office might be appropriate to prevent similar concerns from arising in the future.
I hope that my former legislative colleagues will explore these options during the next legislative session.
Dan Liljenquist is a former state senator and U.S. Senate candidate.
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