Students of New Jersey’s constitutional framework will appreciate that New Jersey’s governor enjoys a very high level of institutional authority. One manifestation is that she or he (with the lieutenant governor) is the only statewide elected official and appoints the attorney general, the state treasurer, and the state comptroller — offices that are separately elected in most other states.
This, in turn, gives rise to a series of governance issues that are unique to New Jersey. One of the most detrimental to good government, but least understood, is the peculiar concentration of legal counsel functions within the Department of Law and Public Safety under the attorney general by virtue of Executive Order 6 [issued by former Gov. Jim Florio).
Generally, public agencies need access to two broad types of legal services: representation in proceedings before courts or other quasi-judicial bodies (“legal representation”), and legal advice in handling day-to-day decisions and issues, from drafting regulations and interpreting legislation to negotiating contracts and disciplining employees (“legal counsel”).
Generally, in states with an elected attorney general, the attorney general is primarily responsible for legal representation while agencies reporting to the governor typically have legal divisions staffed with lawyers who provide legal counsel to the agency head and other managers.
By contrast, New Jersey law generally charges the attorney general — appointed by the governor — with providing both legal representation and legal counsel to all state agencies. Up until 1990, this unusual structure did not present too much of a challenge to the day-to-day management of state agencies, as agencies maintained independent legal staff who routinely interfaced with their counterparts in the Department of Law and Public Safety.
In March 1990, allegedly in response to a bitter dispute between the then-attorney general and an agency head, Florio issued Executive Order 6.
Although presented as a reaffirmation of existing roles and responsibilities in the name of “consistency” on legal matters, Executive Order 6 broadly asserted that the attorney general “shall have the sole authority to provide legal advice of any nature whatsoever to any State entity” and, most significantly, ordered the consolidation of all agency staff “giving legal advice” within the Department of Law and Public Safety and similarly barred state entities from creating or filling such legal positions. Over time, and with some exceptions, this has been interpreted and applied as a blanket prohibition on state agencies having their own legal staff. Instead, State agencies must rely on assigned assistant attorneys general and (now unionized) deputy attorneys general at the Department of Law and Public Safety for day-to-day legal counsel.
Unfortunately, the Executive Order 6 paradigm doesn’t work and has contributed to a debilitating governing culture that, despite the inexorable growth in compliance-related complexity both within and outside government, discounts the vital role of legal counsel in decision support.
In the real world, agency managers are obliged to make decisions with complex legal ramifications on a daily, even hourly basis. The attorneys at the Department of Law and Public Safety are generally competent and dedicated, but they have limited resources and simply cannot provide the immediate “line-of-scrimmage” legal counsel that is a prerequisite to informed decision-making. Some, indeed most, agency heads have developed informal “workarounds” that involve hiring lawyers in non-lawyer titles, but this is at best a poor substitute for access to sound and timely legal counsel. Too often, agency managers find themselves “flying blind” with respect to legal ramifications in making major decisions with lasting implications and potentially disastrous consequences.
Instead of promoting efficiency, Executive Order 6 has created bottlenecks. Frequently, agency staff (lawyers or not) with relevant experience and deep technical expertise must wait for attorneys at the Department of Law to come up to speed on an issue and almost inevitably “bless” their preliminary analysis, imposing delay and added costs on constituents waiting for permits, licenses, and approvals.
I strongly suspect that every major agency head and most, if not all, governors and their chief counsels subsequent to Florio would privately agree that Executive Order 6 is a managerial nightmare that warrants reexamination and revision.
So why is Executive Order 6 still in effect? Certainly, there has been the institutional opposition of the Department of Law and Public Safety, which can hardly be expected to welcome a perceived diminution of power. And, of course, who wants to waste political capital and argue for more lawyers in the face of potential criticism that agencies will waste money in building up unnecessary new legal bureaucracies?
In response, I can only assert my opinion, based on painful experience, that the cost of under-informed decisions has already far outweighed the incremental cost of providing accessible legal counsel to state agencies.