..." chose our better history..."

One of the great advantages of living in NYC and Cambridge - where I am today - is that I get to read a goodly part of the Sunday NYT on Saturday.   This morning I read an excellent article about how three museums - Brooklyn, Detroit and Newark - have worked hard to reinvent themselves in a declining environment.  I also read where two others - LA Contemporary and the Las Vegas Mob Museum - seem to fall back on less appropriate (albeit legal) ways of staying alive with the former attracting Eli Broad one more time and the latter going to Harry Reid for an earmark as if the world hasn't changed with a half million jobs lost in just the last month.
 
These readings bumped into the story about how a play I had wanted to see - Dividing the Estate - is staying alive by going to Hartford with all sorts of concessions and deals made with the Hartford ngo community.
 
And all of this is occuring while I am putting in new bookcases to house books that I have read and will never read again?  (The sawdust is all around me as I write).  As my late-mother used to say when she saw my books piled up, "haven't you ever heard of the library?"
 
These seemingly unrelated things are all connected to my head as we all struggle to see out ways through just how much our world has changed - and changed a lot.
 
 And it doesn't have to be all bad. (It may be my imagination, but it seems to me that everyone is being very nice to each other lately....).
 
Attorneys general have extensive jurisdiction over the regulation of non-profits, and the bottom line is that (as always) some non-profits are going to make good and legal decisions.  Some are going to make bad and legal decisions.  And some are going to make bad and illegal decisions.  This line is not an easy one to define, and AG's will have to assist their non-profits in making these decisions.  
 
My own suggestion of today is to think about libraries.  When I was a kid, we never considered purchasing a book which is why all the librarians had memorized the numbers of all the Tierney kids.  But in these hard times when businesses merge in order to survive,  why not assist our libraries?  (AG's are often called upon to review the mergers of non-profits.) 

I mean,  why buy books when as kids we borrowed them?  Why not put art work from our museums on the walls of libraries?  Why not get libraries to move around and maybe move part of their books into museums attracting visitors to both?  And while we are at it,  why not put community theatre productions into libraries and/or museums?  

And what can an AG do to facilitate the merger of a museum in trouble with an underused library and make a community - no matter how small - a little happier?"
 
I mean, why not?

My Public Statement:

December 11, 2008 (NEW YORK) – James Tierney, director of the National
State Attorneys General Program at Columbia Law School, is available to
speak with media about the authority of Illinois Attorney General Lisa
Madigan to petition for the removal of Governor Rod Blagojevich from
office. Blagojevich was charged Tuesday with federal corruption. Madigan
has said she is prepared to take action if Blagojevich does not resign.

Tierney: “Most people don’t know that the attorney general can sue his or
her own governor. But a state attorney general is the lawyer for the people
of the state – not just for the office holders or the bureaucracy.

“If an elected official fails in his or her duties and the fundamental
integrity of the government is at risk, an attorney general has the
discretion to act independently to protect the public from ongoing harm.

“Impeachment is a vital method to remove an office holder from his or her
position, but it is not necessarily the exclusive remedy. A state attorney
general can move quickly to stop an official’s continuing illegal behavior
even as impeachment proceedings occur. Further, an attorney general can ask
the state's judiciary to temporarily strip an office holder of authority
pending impeachment.

“The office holder has recourse to counsel and the opportunity to make his
or her case before the courts. That said, it is part of the attorney
general's responsibilities to advocate for the public interest.”

Today's NYT contains an excellent story that notes "As FHA's Role Grows, So Does the Risk of Fraud."  (B-1). The story notes that the FHA is making a comeback but that some people are taking advantage and there are insufficient federal resources to keep the program as honest as it should be.

There is nothing new here, so why doesn't the FHA - and similar federal agencies such as the OTC, etc. - simply delegate enforcement authority by Rule - along with some money - to state AG's?  AG's know how to prosecute this sort of fraud and this approach would put fifty new "cops on the beat" who are experienced in combatting fraud in the mortgage market.  The FHA is an "off budget" agency (in other words, it is funded from fees, etc. and not direct tax dollars) and they could create an immediate deterrent to fraud.

There is nothing new in this idea.  State consumer and antitrust divisions were started with federal grants to AG's back in the 1970's. 

So, what is the problem?

US Sen Mel Martinez (R-Fla) today announced that he is not seeking reelection in 2010. While there is nothing remarkable in the announcement - elected officials move on all the time - what was remarkable is that I happen to be in Florida and saw the announcement on the 11:00 P.M newscast but not until after stories on local sports, the weather, a report on homeless problems and a mobile home fire. 

Judge Richard Posner came to Columbia Law School on the 26th to chat about the financial crisis.  Posner is (of course) one of the most vocal law/economics/deregulation voices and has long disparaged the work of state attorneys general.

The Columbia website carries a description of his presentation that reads in part...

"November 26, 2008 (NEW YORK) – As a staunch proponent of free trade and minimal regulation, U.S. Court of Appeals Judge Richard Posner told a packed audience at Columbia Law School that he surprised even himself by placing the blame for the current financial crises not with Washington but with the free-market system.

Am I the only one who finds it remarkable that senior - and very talented - members of Congress are lining up for jobs in the Obama Administration?   Sen. Hilary Clinton seems perfectly happy to walk away from being the Senate Majority Leader and Rahm Emanuel didn't blink when he turned his back on an easy rise to being Speaker of the House.  By any historical analysis, both of these decisions appear to be an abdication of power.  An understanding of the amassing of power in the Exec. by President Bush, however, makes the decision of both Clinton and Emanuel entirely rational.

Did Congress lose the election of 2008?

TheNew York Times of Nov. 23, 2008 carries this astounding opening..

"In September 2007, with Wall Street confronting a crisis caused by too many souring mortgages, Citigroup executives gathered in a wood-paneled library to assess their own well-being.

There, Citigroup's chief executive, Charles O Prince III, learned for the first time that the bank owned about $43 Billion in mortgage-related assests."

The first time?  The first time?

Perhaps President Andrew Jackson had a point when he said to Nicolas Biddle, "I do not dislike your Bank more than any other bank..."

My old friend and colleague, former Texas AG Jim Mattox, passed away yesterday at the age of 65.

While much will be read about this colorful son of Texas, few realize that he raised his sisters after the passing of their parents.  Having come to a high place from humble origins, Jim Mattox left office in 1990 saying "I feel like a turtle on a fencepost.  I didn't get up here by myself, and I thank you all..."

1.  Incoming members of Congress have 200 tickets to the inauguration of President Obama.  Outgoing members of Congress have 2 tickets to the inauguration of President Obama.

2.  While attending a wonderful choral/brass presentation yesterday afternoon at an Upper West Side Church, I turned to look up into the choir loft to see the organist and the choir.  In doing so, I could not help but note that the man behind me was reading a copy of "Oil and Gas Journal."

I felt badly for John McCain on "Meet the Press" yesterday as he stumbled about trying to just lose by a little instead of by a lot.  Moderator Tom Brokaw threw him a softball question and asked him for the name of a movie that best reflected his current political condition.

"Say 'Rocky," I said to the TV set.  "Sure the movie is 32 years old, but it has a run on cable and there is a demographic of voters who were inspired by the come from behind, Italian boxer who defied all odds.  Rocky was a 1970's "Joe the Plumber!"  Say Rocky!!"

Sen. McCain seemed flumoxed by the question. 

After a few moments, he said:

"Knute Rockne and The Gipper!  That's the one!"

For my readers under the age of 50, Sen McCain was referring to a 1940 movie starring Pat O'Brien and Ronald Reagan wherein a dying member of the Notre Dame football team asks his coach to inspire a future generation of the Fighting Irish to :"Win One for the Gipper." 

As I said, I am feeling badly for Sen. McCain.

32 state AG's have announced a $62 million settlement with Eli Lilly and announced a conset agreement wherein the drug maker brings its off label marketing campaign into compliance with state consumer laws.  While the dollars are the most for this kind of case, the "dog that didn't bark" in this case is once again the fact that appropriate federal agencies sat on the sidelines while the AG's protected the accuracy of information that comes to us as consumers.   It is no small wonder that the drug industry is racing to preempt state jurisdicion in the soon to be argued Wyeth matter that is pending before the US Supreme Court.

Just when we all feel like a frustrated Diogenes, someone comes along who does it right.  The Office of AG in Wa, led by AG Rob McKenna who is in the midst of a hot and heavy campaign for reelection, is about to file a serious campaign law violaton against the state GOP. Although he has recused himself (something that is not required either legally or ethically), the case will proceed. 

AG McKenna is the sort of elected official who should give us all hope that it doesn't have to be as bad as it so often is.  AG McKenna is committed to doing the right thing.  We are all fortunate that he is in elected office.

There are very few open and competitive races for AG this year, so both political parties political operations are able to stream a lot of money into just a few states.  That being said, the GOP operation (RAGA) just sent an astounding $1.1 million to that candidate - dwarfing the Dem (DAGA) contribution of $200,000.  Election day is a month away, however, so watch the escalation in the next weeks.  That being said, the top of the ticket generally calls the shots downstream making it very, very hard for a candidate to break away from his/her party during these partisan times.

The full extent of a Governor's authority to issue exec orders (or declare a State of Emergency) is murky at best.   NM AG Gary King ruled today that his Governor, Bill Richardson, was within his authority to require that state contractors with six or more employees carry health insurance.  Litigation is sure to follow.

Columbia Law Professor Mike Heller has written an extraordinarily thoughtful book entitled "The Gridlock Economy: How Too Much Ownership Wrecks Markets, Stops Innovation, and Costs Lives."  Written in the tone of Malcolm Gladwell's "Blink," Larry Lessig's "The Future of Ideas," and Tim Wu's "Who Controls the Internet?", Heller examines the phenomenon when too much ownership can block its highest and best societal use.  In doing so, he introduces the reader to new terms ("underuse" and "the tragedy of the anticommons") and creates a new language with which to grapple with issues both theoretical and real.

I read the book last weekend and strongly recommend it. 

At one point, Heller cites the so-called "lobster gangs" of Maine wherein lobster fisherpersons (trust me, there are many women who are hauling traps even as I write) have their own codes which he likens to the "management principles of Tony Soprano."   This colorful and fanciful description (written by one of the many NYT reporters who buffalo their editors into summer vacations in Maine by conjuring up silly stories) nonetheless brought back to mind my ten years as AG of Maine and of wrestling with the lobster issue.  Working with the then Maine Commissioner of Marine Resources - who had the marvelous name of Spencer Appolonio - and with all stakeholders, we did fashion a resource sensible/law based solution.  I only wish we had Heller's book during our struggle.  It would have assisted us in using a language that made sense to all involved.

Attorneys general struggle with the issue of ownership everyday.   The implications of Kelo v. City of New London  continue to trouble all aspects of state regulation.   I suggest that the attorneys general give themselves a break and pick up Heller’s new book.  I suggest that they focus on the chapter entitled “The New Lexicon” and the chapter that deals with the spectrum issues. 

In doing so, leave your personal prejudices at the door and get into the new place that Heller will take you.

 

An article in this today's North Platte Bulletin has caught my eye.  It seems that the Nebraska Department of Weights and Measures has caught several gas stations selling ethanol products as premium gasoline.  This sort of fraud may or not go undetected when the price of fuel is half what it is now, but in these troubled times there will be little tolerance shown for fraud.

 

Md AG Doug Gansler's threat to sue car rental companies for excessive per gallon charges - some "Don't Gas Up" charges were hitting $8 a gallon in Maryland - has brought some relief and an article about the practice in USA Today.   Gansler's move is generating discussion among his colleagues at this week's National Attorney General Association (NAAG) conference.  If the practice is not curtailed, I would expect other state AG's will act.

Now that the strains of "Pomp and Circumstances" have faded away, millions of young high school students and graduates will be out in the workforce.   Although often too young to vote, they are entitled to the protections of our labor laws.

Ma AG Martha Coaxley maintains a website - http://www.laborlowdown.com - and runs radio advertisements informing her state's young people that they are protected by the minuimum wage and other labor laws.  Her goal is to arm these young citizens with the knowlege that they are protected by the same laws and constitution as the rest of us.

My question is simple.  Why don't other AG's do the same thing?

From time to time I get to use this forum to brag about my own AG - Maine AG Steve Rowe - and today I do so because of his outstanding work with the Maine Hospice Council and Center for End of Life Care.   AG Rowe personnally moderated discussions about Maine "End of Life" care in a series of seven Town Meetings across the state.  The discussions drew several hundred particpants and transcripts have been created that will in turn become a report that should be out soon.   AG Rowe's efforts are part of an on going effort by state attorneys general to address this important area of concern.  

For more information, go to  http://www.naag.org  and  http://www.stateag.org in the section entitled "Pain and End of Life."  

As state AG's increasingly utilize their jurisdiction over non-profit organization governance they are having to face their responsibilities when hospitals find themself in trouble.  

The bold action recently taken by Ma AG Martha Coaxley when faced with a sobering report on the operation of six Catholic hospitals in eastern Massachusetts might serve as a harbinger of things to come.

The bottom line is that a report that the AG had commissioned reported that the Caritas Christi Health Care system had serious governance and financial problems.  Owned by the Archdiocese of Boston who had been unable to find a Catholic purchaser, AG Coakley announced on May 20 that the Archdiocese had agreed to give up control of the hospital system.

The Attorney General's office approved a plan that leaves the Archdiocese with "veto power over major strategic moves, including major transactions, Catholic identity, bylaw and charter changes as well as the hiring of the president and chief executive officer." The AG's office also reported that, "Under the amended Bylaws, Caritas will be governed by a 16-person Board of Governors, three of whom shall be appointed by the Archdiocese, one of whom shall be appointed by the Dominican Sisters of the Presentation, one of whom shall be the President and Chief Executive Officer of Caritas serving ex-officio and the balance shall be elected by the Board."   

AG Coakley had previously identified the need for the Archdiocese to release control over "over strategic, operational, and financial matters of Caritas while retaining influence only over matters of religious direction" as the most compelling priority. 

The number of hospitals that are in trouble is growing.  My prediction is that AG's will have to begin to turn their direction to what they are doing to do about it when it lands in their lap.