(The Center Square) – The Washington State Attorney General’s Office has drawn criticism for providing legal advice to the Secretary of State’s Office regarding a request by Attorney General Bob Ferguson through his campaign attorney to alter the order of candidates on the November election ballot.
Last month, two men also named Robert Ferguson filed to run for governor. State election laws has the order of candidates listed on the ballot to be chosen at random. Both Robert Fergusons would have appeared above Attorney General Ferguson on the ballot.
In response, Attorney General Ferguson threatened legal action against the two men on the basis that they were intentionally trying to deceive voters; both men soon dropped out of the race.
Ferguson also requested at a press conference and through his campaign attorney that Secretary of State Steve Hobbs alter the order of candidate names on the ballot so that he would appear above them.
In a statement to The Center Square as part of a public records release, Hobbs said his office received legal advice from the AGO as to whether or not this would be legally permissible; in the letter, Hobbs reiterated his prior conclusion that he had no authority to do so, writing that “there is no ambiguity” in state law.
“I am grateful that both state law and administrative code provide clear rules for how to keep the ballot order of candidate names free from bias or manipulation,” Hobbs wrote.
However, the AGO’s decision to offer legal advice was criticized by Rob McKenna, the former state attorney general who served in the office before Ferguson and unsuccessfully ran against Jay Inslee for governor in 2012.
In a voicemail left to The Center Square, McKenna said “in a nutshell I don’t think it’s appropriate. That is a conflict of interest, and instead the Attorney General’s office should have appointed a special assistant attorney general from outside of the office to advice the Secretary of State on that issue.”
Also critical of the AGO’s involvement is Bob Scales, a former deputy prosecutor with King County and special assistant U.S. attorney for the Western District of Washington. In an email to The Center Square, Scales wrote that the AGO providing legal advice to a client on a matter involving the head of the office violated Washington State Rules of Professional Conduct Conflicts of Interest Rule 1.7
“It is the AGO and not the client that has the duty to avoid conflicts of interest,” Scales wrote. “The AGO should have refused to provide legal advice to SOS and they should have referred them to an outside attorney.”
When The Center Square reached out to the AGO for comment, Communications Director Brionna Aho wrote that “the Attorney General played absolutely no role in providing advice to the Secretary of State’s Office about the request made by his campaign. The advice was provided by experienced attorneys in our Office without any input from the Attorney General. In fact, the Attorney General was not informed of the request for advice or consulted about the contents of the advice before the advice was provided to the Secretary of State’s Office.”
SOS declined to comment further when asked about whether Hobb’s conclusion regarding state law was shared by any of the AGO attorneys and whether or not outside counsel should have been retained to avoid a conflict of interest.
