IT SEEMS like a simple and common-sense rule: Deep-pocketed private donors should not be able to buy their way into decision-making roles at public institutions. So why does it keep happening in Virginia?
Last year, legitimate concerns were raised when it was discovered that big donors, including the Charles Koch Foundation, had been given a say in the hiring and firing of professors at George Mason University in Fairfax, Virginia’s largest public university.
After a group of students sued, university President Angel Cabrera finally admitted that the donor agreements “fall short of the standards of academic independence I expect any gift to meet,” but claimed the university made the final decision in any personnel decisions.
But by failing to follow academic standards regarding large gifts by private donors, George Mason administrators compromised the reputation of their own institution, as well as that of its faculty, students and graduates.
Meanwhile, Virginia Attorney General Mark Herring was submitting an application for a full-time special assistant attorney general in his office “to participate much more fully in cooperative efforts to advance the agenda represented by the State Impact Center,” a climate change group at New York University Law School founded—and funded—by former New York Mayor Michael Bloomberg.
Last November, the Competitive Enterprise Institute, a Washington-based think tank, filed a Freedom of Information Act lawsuit in Richmond’s Circuit Court after Herring’s office denied it had any records relating to the privately-funded special assistant attorney general position.
CEI pointed out in its court filing that while hiring outside attorneys is allowed under state law and the OAG’s Special Counsel Policy in cases where “it is impractical or uneconomical for the Office to render service,” the attorney general must state the reasons for the outside hires in writing.
On Jan. 29, the court agreed—and ordered Herring’s office to comply with the group’s FOIA request.
In addition, CEI maintains that state law requires that any outside help must be paid with public, not private, funds in order to avoid any real or potential conflicts of interest. “Using law enforcement as private mercenaries is unacceptable. It aims to undermine voters’ decision to reject their political agenda, and it uses public resources to target political opponents,” CEI senior fellow Chris Horner, the plaintiff in the FOIA case, wrote in his “Law Enforcement for Rent” report published last year.
“The ethical problems here should be obvious,” a Nov. 7, 2018, editorial in The Wall Street Journal on Bloomberg’s assistant attorney general program also pointed out. “Private interests are leveraging the police powers of the state to pursue their political agenda, while a government official is letting private interests appear to influence enforcement decisions.”
On Sunday, the last day of the extended legislative session, Virginia became the first state to address the issue of embedding privately-funded attorneys in state prosecutors’ offices.
In a rebuke to Herring, the General Assembly passed an amendment to the state budget conference report (HB1700) clarifying that “all legal services of the Office of Attorney General shall be performed exclusively by an employee of the Office, an employee of another Virginia governmental entity as may be provided by law, or an employee of a federal government entity pursuant to an agreement .... The sole source of compensation paid to employees of the OAG for performing legal services on behalf of the Commonwealth shall be from appropriations provided under this act.”
In cases in which outside legal help is needed, the contracted lawyers cannot perform any legal services on the premises of the OAG, and the legal authorization and amount of remuneration must be stated in writing—and be publicly accessible via FOIA.
Billionaires who want to influence public policy have many options in which to do so at their own expense. They can make campaign or charitable donations; set up a foundation; buy advertising; or fund a special interest group. But one thing they should never be allowed to do is hide behind public institutions by paying them for insider access.