Budget repair bill could spell doom for state’s chief general counsels (UPDATE)

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By Jack Zemlicka

A portion of Gov. Scott Walker’s budget repair bill seeks to weaken the job security afforded general counsels in cabinet state agencies.

The proposal would shift cabinet agency positions of chief legal counsel, public information officer and legislative liaison from classified to unclassified status.

If the bill eventually passes, the change would mean that current legal heads of state agencies such as the Department of Transportation and Department of Workforce Development could be reappointed by department heads.

Calls to Walker’s office seeking comment on the proposal were not immediately returned.

But Madison litigator Lester A. Pines suggested that the motivation for the proposal is nothing more than a political power grab.

If adopted, he said the bill could cast doubt on the independence of state legal departments as well as cost qualified attorneys their jobs.

“We’re talking about firing long-term attorneys who advised those agencies and replacing them with political appointees,” he said. “Everyone in the legal community should be up in arms over this and I suspect this could lead to some kind of court challenge.”

Former Department of Natural Resources Chief Legal Counsel Richard L. Prosise suggested that even if attorneys didn’t lose their jobs under the new law, they would be reassigned to lesser positions or seek other employment.

“A No. 1 would be a No. 2, at best,” Prosise said. “There is concern that the major impact will be a loss of experience as some incumbents retire or seek other positions outside an agency.”

In his experience as an attorney with the Public Service Commission, Steven A. Levine said the loss of veteran chief counsel will invariably put more pressure on other lawyers in the cabinet agencies.

He initially worked under the same chief counsel for 25 years, which was beneficial because his boss could recall agency history for the last 10 or 20 years.

“What happens with political appointments is you get someone who stays for two or three years until the next regime,” said Levine, who retired in December. “When they come in, they don’t have any experience as far as the law the agency administers.”

Prosise served as DNR Chief Legal Counsel from 2004-08 and questioned the need to give the governor direct appointment power of agency attorneys. Currently, department heads, appointed by the governor, oversee the selection of general counsels.

“I assure you, administrators check with the governor’s office to see want he wants done,” he said. “The input is already there, which leaves one to wonder what the governor is seeking by direct appointment power and what mischief could occur if such a power was there.”

The Wisconsin Department of Justice is excluded from the proposal because the Attorney General is an elected position.

Currently, other Chief Legal Counsel positions have the equivalent of “tenure,” according attorney Charles M. Kernats, who is Assistant General Counsel with the DOT.

“That means you cannot be removed unless there is just cause,” he said. “If they are unclassified they could be removed for any reason at all.”

Given that Kernats is an assistant general counsel, he isn’t worried about losing his job after more than 25 years. He said attempts have been made in the past from both political parties to declassify agency positions.

But given that Republicans control both houses in the Legislature as well as the governor’s office, Kernats said the proposal has a better chance of passing this time.

“When proposals were made in past, we didn’t have one party controlling everything,” he said. “This time we do, so for that reason alone the chances of it passing are certainly much greater.”

Jack Zemlicka can be reached at [email protected].