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Sometimes secrecy can be explained

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By Jay Miller

SANTA FE — Perhaps  there was good reason for Attorney General Gary King to want his advice kept secret concerning the veto of a double dipper bill last March.

This column and many other commentaries on King’s action had suggested his motivation was suspicious, maybe even nefarious. But it may be the secrecy was necessary to the performance of his job.

Those of us in the news business hate secrecy. We go to court to gain access to documents. But it appears the attorney general may sometimes be forced into secrecy because the office can find itself in the position of representing both sides of an issue.

First, a little background so we’re sure we’re on the same page. Double dippers are those of us who retire and then go back to work and collect a paycheck in addition to our retirement check.

If it’s not with the same employer, no one seems to care. Military retirees probably are the most common double dippers.

Last year, the New Mexico Legislature almost unanimously passed a budget-balancing measure preventing state employees from returning to work and collecting a state paycheck plus a state pension. Gov. Richardson somewhat surprisingly vetoed the measure upon advice from the attorney general, who wanted the reasons kept confidential.

It has been suggested to me that private attorneys see a pretty good unequal treatment lawsuit based on the fact that public employees from the federal government, military and other states would not be similarly affected.

Might the attorney general have been concerned that if the measure were to pass again in the future and be signed, his advice would be used against him if a lawsuit were to be filed?

The attorney general’s office would be called upon to defend such a suit despite the fact that he disagreed with the legislation. It won’t do any good to ask King if that was his reason for secrecy because if he tells me I’m right, I’ll tell the world and that would be used against him.

The election of attorneys general presents a problem. They usually run on vague promises that they will be the people’s attorney, fighting for their rights and protection.

That is a lot of what attorneys general do. But they also are called upon to be the government’s attorney and that can put them in conflict with doing what they may think is best for the state, for instance when state officials are accused of wrongdoing.

Some of that confusion might be reduced if the attorney general were to be appointed, rather than elected. In the federal system, the attorney general is appointed and we know he’s the president’s guy, not necessarily the people’s.

Some of that problem is resolved at the state level by a state agency, such as the governor’s office, hiring its own attorney. But in the case of the Legislature getting representation, that usually is done by the attorney general, who wants to represent the body vigorously since the Legislature sets his appropriation.

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While we’re on the subject of the Attorney General’s Office, Chief Deputy AG Stuart Bluestone recently wrote an opinion piece in the Albuquerque Journal complimenting the process used by the Legislature’s interim Courts, Corrections and Justice Committee to develop legislation creating an ethics commission.

Numerous unsuccessful attempts have been made to pass such a measure in recent legislative sessions. This one may get no farther but Bluestone feels the process used to draft the bill deserves credit and recognition.

A subcommittee of equal numbers of Democratic and Republican, House and Senate members was appointed. Hearings were held throughout the state. Bluestone felt there was remarkable bipartisan involvement.

As drafted, the commission would have eight legislative members chosen on a bipartisan basis and three appointed by the governor, one of which can be neither Republican nor Democrat.

E-mail Jay at inside

thecapitol@hotmail.com