Attorney General and Governor fight over control of lawyers employed by executive agencies

ON JULY 1, 1974, thousands of State employees faced the prospect of payless paydays. The immediate cause was a legislative impasse over an amendment earlier added at the request of Attorney iGeneral William J. Scott to restrict line-item appropriations for legal services "for the sole and exclusive use of the Office of the Attorney General" to the bills for executive agencies.

Though approved by the Senate with substantial bipartisan support, the amendment failed to pass the House when Governor Dan Walker labelled it an unconstitutional attempt by the Attorney General to control the legitimate legal-policy services performed by "house counsel" traditionally employed by executive departments. The bills remained locked in conference committee, with the issue assuming partisan overtones as political lines formed behind the Governor and the Attorney General.

The conflict remained unresolved into the new fiscal year, until July 10, when the possibility of payless paydays and accompanying political charges and countercharges reported in the media resulted in Scott's public statement strongly affirming the constitutional basis of his position, but agreeing to a withdrawal of the controversial amendment on the bills in conference committee in order to prevent "the possibility of innocent people — career employees — facing payless paydays."

The concession did not include the amendment on appropriation bills for five executive agencies. Earlier, the amendment to the Department of Public Aid bill had been modified by agreement of the Governor and the Attorney General to eliminate the "exclusive control" phrase and to limit the appropriation to "assistant Attorneys General engaged in enforcement services," the latter concept being acceptable in principle to the Governor.

Governor vetoes the line items
On July 26, the Governor vetoed the earmarked line-item appropriations and charged in his veto message that the "sole and exclusive" clause (1) "contravenes the intent and letter of the Constitution and constitutes a departure from time-honored practices in the State" regarding the appropriate role of the Attorney General; (2) violates the constitutional provision in Article IV, Section 8 (d) that "Appropriation bills shall be limited to the subject of appropriations," and (3) violates the State Finance Act by shifting the responsibility for the expenditure of public funds vested in the Department of Finance to the Attorney General.

The Attorney General has stoutly maintained that the controversial amendment is nothing more than a constitutionally mandated responsibility of his office, clearly and authoritatively determined by the Illinois Supreme Court in a series of cases establishing him as "the sole and official advisor of the executive officers and of all boards, commissions and departments of State Government," whose duty it is "to conduct the law business of the State, both in and out of the courts" (relying on Stein v. Hewlett, 52 Ill. 2d 570 at 585-586, 1972, and Fergus v. Russell, 270 111. 304, 1915, the first definitive case expressing the principles noted).

The action of the General Assembly regarding the Governor's vetoes cannot finally resolve this controversy. The Attorney General has threatened court action and the Governor has said he would welcome it, but such litigation will be prolonged and perhaps inconclusive. All this suggests that an administrative accommodation would be desirable and possible if the nature of the conflict can be clearly assessed by both parties.

Positions polarized, imprecise
Analysis of the respective positions reflects their polarization and imprecision. The Governor or his spokesmen charge that Scott asserts a constitutional right to hire every attorney for State government, including lawyers who perform no legal services of any kind. In addition, the Governor charges in his item veto message that the logical extension of Scott's position "would be a take-over of all attorneys now working for the General Assembly — the parliamentarians, legislative staff members, members of the Legislative Reference Bureau, lawyers hired to conduct investigations or draft legislation.' In response Scott, in a news release dated August 8, 1974, asserted:

"I have not and do not claim the right to 'control every lawyer working for State government.' At no time have 1 claimed the right to hire administrative aides or executive assistants whose primary obligation is in the field of administration and policy making and who also happen to be lawyers."

In the same statement of refutation Scott added: "I have in fact opposed legislation which would have deeply involved my office in the general legislative process; that opposition stemmed from my firm belief in separation of powers of the three

8/Illinois Issues/January 1975