Posted: April 22, 2011
THE TREASURER FLUBS THE LAW ON LAWYERS
By Celia Cohen
Chip Flowers, the state treasurer, is fond of calling the office he runs the "People's Treasury." He is not so fond of the "People's Lawyer."
That would be the attorney general.
Flowers, a Democrat elected last year, went out and hired his own lawyer to sidestep the attorney general, who by law is supposed to be the counsel for all the workings of state government.
There is actually a way under Delaware law for officials like Flowers to be granted outside counsel. They can get the permission of the governor and the attorney general before getting the lawyer.
Flowers did it backwards. He got the lawyer before he got the permission, so there has been a lot of scrambling to let him fix it after the fact. The paperwork is still being completed. This, even though Flowers is a lawyer himself.
"The treasurer's approach to the representation issue was somewhat anomalous," said Charlie Butler, the chief deputy attorney general. "In this case, it seems that the pre-approval process was not the way the state treasurer handled it."
This law on extra-curricular attorneys came into play because Flowers is at odds over control of state money with the Cash Management Policy Board. It is charged with the prudent investment of the money the state has on hand, and it was skeptical of a proposal from Flowers to distribute $200 million to local banks to spur small business loans.
The Attorney General's Office was backing up the board, so Flowers decided to hire Clark Collins, a partner at the Morris James law firm in Wilmington. Flowers used his own money, and he just did it, without first securing approval.
It was not only the state's money management that Flowers wanted to do his way. Now it was the state's legal framework, too.
This was not partisan warfare. Beau Biden, the attorney general, is a Democrat like Flowers. So is Jack Markell, the governor.
Collins, the outside counsel, said Friday that Flowers did not want him to comment on the situation, but Flowers' displeasure with the Attorney General's Office was plain in remarks he made earlier in the week as he failed to persuade the Cash Management Policy Board to approve his proposal.
"I don't think that we're ever going to get the Attorney General's Office comfortable," Flowers said.
The Attorney General's Office is understanding of the need for outside counsel when conflicts occur. They do happen, even to the office itself. There was a circumstance four years ago when it was investigating the Delaware Psychiatric Center for patient mistreatment and mismanagement, so it could not exactly provide representation at the same time. The hospital was given its own lawyer.
"We're anxious for him [Flowers] to have his own counsel in pressing the issue that the treasurer has authority over cash management, because it's so obviously in conflict with the Cash Management Policy Board, which we also represent," said Butler, the chief deputy.
"Normally if a conflict arises, one of the parties seeks permission to hire separate counsel. We are not going to go to DEFCON Four here, because we're going to fix it. We would like not to fix it post facto [afterwards]," Butler added.
It could have been so simple. All Flowers had to do was ask.