Transcript: Chat with new Attorney General Rob McKenna

The Olympian

Olympia, WA - 3/5/05

Moderator: Welcome to Capitol Chat, I'm the moderator, Political Editor Brad Shannon. Our guest today is Rob McKenna, the Bellevue Republican who took over as Washington attorney general in January. In recent days he has been embroiled in a public records dispute with the Legislature, seeing his open-government proposal severely rewritten by members of the Senate Government Operations and Elections Committee. He is joined by his communications director, Greg Lane.

Moderator: Tell us, Rob — What is at stake for the public if Senate Bill 5735 becomes law as it is now written?

McKenna: The bill would still improve public access to government records over what that access would be under the Supreme Court's decision last year, although I don't support the Senate Committee's decision to liberalize the use of attorney-client privilege as a basis for exemption from disclosure. The rest of the bill still deserves passage by the Legislature and is still largely in the form I proposed.

Josef, Sedro Woolley: Thanks so much for kicking butt on the document access issue. I hope that you will agree with me that we need to write into the Open Public Meetings Act a provision requiring public comment before action is taken. The need is highlighted the case of Skagit Valley College, where public comment has been shunted to the last item by rogue trustees.

McKenna: It sounds as though he's referring to the public comment period at an open public meeting and that he'd prefer the comments be taken at the beginning of the meeting rather than at the end, and I agree. I think it's more courteous and more productive. That may be the level of detail that isn't suited to the statute. One of the provisions of the bill I've proposed is for the attorney general's office to create a model rule, and that's certainly something we could incorporate.

Moderator: What did you do yesterday to try blocking Sen. Jim Kastama’s amendment of the disclosure bill that tightened protections for government lawyers even further than you wanted? What will you do now?

McKenna: Well, the primary risk going into yesterday's committee hearing was that the bill wouldn't move out at all, so most of our energy was devoted to that, even if the bill was amended somewhat. We conveyed to the Senator that we would not support the addition to attorney client privelege, and not withstanding that the bill did move out and now we'll have the opportunity to fight it in the Legislature.

McKenna: I believe that liberalizing attorney client privilege will result in more litigation by frustrated information seekers.
Our policy is tighter than the Supreme Court would allow, and certainly tighter than Kastama's amendment. Prior to last year's supreme court decision, disclosure was assumed except in cases of litigation or where litigation was likely.

Moderator: Why wouldn't you write that clearly into the law? Why give in to government lawyers?

McKenna: The issue is whether legal advice itself should be subject to disclosure, a narrow category of information. As a result, if an attorney gives legal advice concerning an investigation, that would be protected under attorney-client privilege, but the facts of the investigation would not be protected. It's a narrow category of disclosure issues here.
Prior to the Handgartner case, attorney-client privilege was not being limited to matters in litigation or likely to be in litigation. Agencies were applying it in a broader range of situation. The controversy rule had been stretched to a greater extent than is commonly understood. In our bill, we were looking to rein back in attorney-client privilege.

David, Federal Way: Why are you (seeking to reduce) the statute of limitations for filing a records access suit? If there is no pending litigation or threatened litigation, why do state agencies need this wide sweeping exemption?

McKenna: Part of the compromise in this bill between government agencies who are frustrated by occasionally abusive disclosure requests and requestors who are frustrated by occasional recalcitrance by government agencies is to require more rapid disclosure by agencies while at the same time not allowing attorneys to dig into requests that are several years old to find the basis for a lawsuit.

David, Federal Way: Why audit agency copy costs? Why not just set a flat fee of five or 10 cents per copy and if an agency is subsidizing some of the cost of copies, then consider the benefit of an informed public as worth the cost?

McKenna: The law states that the agency charge a statutory rate of 15 cents per copy unless their costs exceed that. I think it's unlikely that agencies will be able to show costs greater than that, but in the unusual case, we wanted to make sure the agencies understood they were subject to audit for those expenses.

Sam, Centralia: If the Republican Party has found 1,100-plus felons who voted in the previous election, why isn't the Attorney General's office seeking release of the names of those individuals so that they can be prosecuted for violating the law? Also, would such votes be considered a violation of their parole?

McKenna: No, I don't think an illegal vote would violate their parole. I doubt that terms of parole ever include the issue of voting. With regard to releasing the names, I think they should be releaseed to county prosecutors when the courts find it appropriate to do so. I think the lawyers in the case are being careful not to get crosswise with the court. I think the names will and should be released.

Moderator: Given the great number of allegations and counties covered, is there a role for the attorney gereral in these cases?

McKenna: The AGO has no original jurisdiction over criminal matters. We are only allowed to prosecute criminal matters when requested to do so by county prosecutors or the governor. Therefore, it's up to the county prosecutor to decide whether to pursue a case. They have to formally ask the AG to pursue prosecution.

Moderator: Would you welcome that kind of request?

McKenna: We would do so, yes.

Moderator: Could you describe how you're monitoring Rossi's lawsuit?

McKenna: We are involved in the election contest lawsuit in our law as legal cousel for the Secretary of State. The Secretary of State's role, as I see it, is to explain what advice he provided to the county auditors and to explain what he believes the law means with respect to the issues in the lawsuit. What the Secretary of State is not in a position to do is to comment on the evidence of illegal votes. He doesn't handle the ballots.We're really in a trial over evidence, so the principal roles are taken by the parties and the county auditors.

Moderator: Could you assess whether Rossi has a case?

McKenna: I think the election contest statute allows parties to bring evidence of illegal votes and the court must then decide how to treat those cases with respect to the outcome of the election.The more illegal votes, the more likely the court will vacate the election. We're not sure what standard the courts will use yet.

Dawn, Castle Rock: The Democrats are acting on election reform bills before they've even heard suggestions from their election reform task force. It just seems like maybe this task force is just to keep the public quiet. Is there anything legally that can be done to clean up the elections process in our state?

McKenna: Yes, the election process can be reformed through legislation both at the Legislature and by the people through initiative if they choose to pursue that. So any election rule can be modified to some extent.

McKenna: I think one change we must make is that third parties ought to be prohibited from going out and collecting new signatures on ballot affadavits after they have been turned in. I believe provisional ballots ought to be treated like absentee ballots -- only the county auditor should be allowed to contact voters about signature problems.

Sompone, Kent: I was a victim of ID theft in January 2001. In most cases that I've read, the victim didn't know the thief, but in my case I did. Your predecessor in office and the Tacoma Police Department said they couldn't do anything and told me to go to civil court to reclaim my money. What will you do during your term to stop rampant ID theft?

McKenna: Theft is a crime whether we call it identity theft or some other form of larceny. I will continue to strongly encourage county prosecutors to pursue these cases and will work with the legislature to consider how tougher penalties for ID theft might serve as more effective deterrence.

Bill, Manchester: What are you doing to protect Washington citizens from information predators such as the ones that hacked ChoicePoint? Don't we need a law similar to California's that requires disclosure of breaches in personal information security? Were you among the other 38 Attorneys General who asked for appropriate disclosure of their state's citizen's information breaches?

McKenna: I agree that breaches of security should be promptly disclosed to customers. I support a bill introduced in the legislature to require prompt disclosure in Washington.

Lane: It was introduced by Senator Branlin. It was introduced last night.

Cin, Olympia: What is the Attorney General's office doing about charity fraud? How many complaints must the Attorney General's office receive on charitable organizations before any action is taken?

McKenna: Charity fraud complaints are filed with the Secretary of State, not with the AGO. I have discussed the problem of charity fraud with the Secretary of State's staff and have offered to increase the coordination with the AGO's office because we do have civil jurisdiction and can go after them on those grounds if there's evidence they've acted fraudulently. I have also asked the state Legislature to allow me to direct savings we've achieved in our budget of $3 this biennium into consumer protection, reducing cyber fraud, and other issues including charity fraud.

Albert, Olympia: Why does the state prefer to settle lawsuits individuals bring against it, rather than fighting them? And where does the money to pay those settlements come from?

McKenna: Settlements of lawsuits are paid out of the legal services revolving fund in the state budget, just as judgments from lawsuits are. The state settles cases where it makes good buisness sense, such as where the cost of defending exceeds the likely settlement amount, the cost of settling.

McKenna: The trend with tort lawsuits against Washington, where the plaintiff is alleging injury, is downward. The amount the state has paid out in judgments and settlements is down the past two years, but is still at $150,000 a biennium, which is too much. We're increasing the emphasis within state agencies on Risk Management.

McKenna: If we can avoid more of the risks, we reduce the harms that result in suits. The second step is to bring in a dedicated litigator to oversee all suits to improve our success rates.We're targeting a senior partner in a Seattle law firm. If we get him, it'll be a great hire.

Michele, Olympia: What do you intend to do about the layers of bureacracy that have been allowed to gather and stagnate at the Attorney General's office under Gregoire? I personally think you need some sunshine in there and hopefully you will be a breath of fresh air, which has been badly needed for a lot of years.

McKenna: I have brought in as my chief deputy an experienced lawyer from the private sector, Craig Wright. He's been the COO of a venture capital fund and a partner in two different Seattle law firms. He and my chief of staff are conducting a bottom-up review of office management structure and processes in order to find savings and efficiencies.

Moderator: What (else) have you found since taking over the Attorney General’s Office that you consider is in bad need of repair in the agency?

McKenna: Because of the appeal in the case about four years ago, there has been a heavy emphasis on creating redundant systems to prevent future mistakes, a kind of siege mentality. We're reviewing the procedures that were put in place to make sure that no appeal has ever failed to be filed, but we're also looking to see if the pendulum has swung too far to lack of trust in our legal professionals.

McKenna: Overall the AG's office is in good condition. There were many excellent lawyers working there when we came in, morale was very good, although it could be higher and we're working on that. The thing the office needs is a fresh perspective, a can-do attitude and new ideas for increased efficiency, and we haven't met any resistance.

McKenna: Enthusiasm for the management has been high, and that's in part because we've reached out to everyone.
Asking for advice and valuing it has a tremendous effect on morale and participation.

Jeffrey, Olympia: Do you think our state's newspapers have fairly reported on the debate about attorney-client privilege?

McKenna: (Laughs) Like I'm going to criticize the newspapers. The newspapers have a lot at stake in public disclosure and naturally they are very passionate about the issues involved. I think there's some tendency by editorial boards to emphasize the attorney-client privilege, but I suppose it's human nature to take for granted that which you've been given, the other 90 percent of my bill.

Jerry, Olympia: At the very least, isn't it a conflict of interest for you to propose legislation to hide from public view those records which hide your public actions?

McKenna: There are two competing interests involved in attorney-client privilege. On the one hand, there's the interest in disclosure; on the other hand, there's the public interest in encouraging public agencies to seek legal advice because when they don't, they often get in trouble.

Bill, Tacoma: The Attorney General's Office has a long history of promoting diversity in state government, including the establishment of a State of Washington Diversity Fair with participants from state agencies and local organizations. What are your intentions in this area and what can you do ensure this awareness and promotion continues?

McKenna: We will continue to encourage diversity in hiring and promotion. I've already spoken to law students at all three Washington law schools to encourage them all to apply, including students who would increase the office's diversity. The office already has a higher percentage of lawyers of color than the population of lawyers generally, so good progress has been made. We simply need to continue to do what works, which is to reach out and encourage students of all backgrounds to apply.

Mike, Lacey: With the U.S. Supreme Court hearing arguments today regarding civic displays of religious artifacts, in particular the acknowledgement of the Ten Commandments as having a deep impact on our laws and judiciary, what is your opinion vis-a-vis Washington's State Constitution on civic/public religious displays that acknowledge God but do not create a "state religion"?

McKenna: Our state constitution does apply a stricter standard to the separation of church and state than does the federal constitution. That does not mean, however, that ever reference to religion in a public place or proceeding is unconstitutional in Washington. I recently signed on to a brief to the U.S. Supreme Court, for example, supporting the words "under God" in the Pledge of Allegiance.

McKenna: I don't believe that violates the state's establishment of religion clause. I also don't believe historical markers violate the state's establishment clause.

Tim, Mukilteo: Voter-approved I-776 said that Sound Transit should retire its outstanding bonds with its huge surplus and other existing revenues. Will you take a different direction than Gregoire did with the courts on I-776 and make Sound Transit pay off its debts?

McKenna: I am urging the state supreme court to accept on direct review an appeal of the King County Superior Court's decision that allows Sound Transit to continue collecting the Motor Vehicle Excise Tax not just for bond retirement, but for new bonds. Sound Transit should not be allowed to spend MVET revenue until those bonds are retired. Once those are paid off, they are not allowed to continue collecting that tax.

Anonymous, Olympia: How do the top management salaries in the Attorney General's office under your leadership compare to the salaries for top management staff under Christine Gregoire?

McKenna: Very similar. My chief deputy makes the same amount as Chris's did.

Moderator: Thank you for joining us today.

McKenna: Thanks for inviting us. Maybe we'll do it again next year.



In accordance with Title 17 U.S.C. Section 107, any copyrighted work in this message is distributed under fair use without profit or payment for non-profit research and educational purposes only. [Ref.]

Back to Current Edition Citizen Review Archive LINKS Search This Site