The impropriety of Tommy Norment

The Virginian-Pilot reports that Senate Republican Leader Tommy Norment has, since July 2008, been working for the College of William and Mary.  According to the report, he is paid a $160,000 annual salary and, during the 2009 Session, he requested a $20 million state appropriation to the college.  These facts may be of interest to people who are familiar with Delegate Phil Hamilton, another senior Republican budget conferee who reportedly accepted a $40,000 annual salary from a subsidiary that Old Dominion University created after Hamilton secured a $500,000 state appropriation for it.  Some will be happy to draw parallels between these two situations, but that is not my purpose here.  Rather, I raise a point that the Virginian-Pilot did not address (and wonder why they haven't addressed it, and urge them to augment their investigation).  The point arises from the uniqueness of the fact that Norment, unlike Hamilton, is a lawyer and that he is providing legal advice to the college.

(The college happily concedes that Norment provides legal advice to the college:

In hiring Norment, the college got a "twofer," [college President] Reveley said in an interview. On one hand, he said, the school got a veteran lawmaker who could give students a firsthand look at how the General Assembly works. The two courses Norment teaches - one in the law school and one in the government department - both deal with the legislative process.

But even more important in his mind, Reveley said, was the opportunity to tap Norment's expertise as a lawyer. Even though his contract says nothing about providing legal services, Reveley said Norment's job has evolved to include advice and consultation on a range of legal issues.

The attorney general's office provides legal counsel to state universities.

"But there are an enormous number of legal issues going on all the time for any college or university where you need somebody working on a sustained daily basis, so you develop your own inside group," Reveley said.

"The opportunity to get somebody like Norment, who is a really splendid lawyer with a lot of experience, in here helping us with those sorts of issues was quite appealing."

For a lawyer of Norment's experience, Reveley added, the salary William and Mary is paying him is "very, very reasonable. Outside an academic context, you couldn't get him for that amount of money."

Moreover, the college includes "legal counselor" among his titles in the faculty/staff directory.)

President Reveley sounds like a man proud of a frugal bargain:  he's gotten a professor and an attorney for one low price.  And the fact that Norment's salary seems market rate for a law professor, and that Norment has actually done work to earn it, does help distinguish his case from that of Hamilton. In fact, that may have impelled Reveley to disclose the legal representation--it makes Norment's employment look like a fair deal, rather than some shady, back alley quid pro quo.  But, as I said, whether the deal is fair or not may differentiate Norment from Hamilton, but it's not what I'm interested in.  (His partisan and factional adversaries will gleefully scrutinize that aspect, whether it has merit or not.)

As the Virginian-Pilot reports, the college is represented by the Office of the Attorney General.  The Attorney General's duty to represent the college is conferred by statute, which makes his representation exclusive:

All legal service in civil matters for the Commonwealth, the Governor, and every state department, institution, division, commission, board, bureau, agency, entity, official, court, or judge, including the conduct of all civil litigation in which any of them are interested, shall be rendered and performed by the Attorney General, except as provided in this chapter and except for any litigation concerning a justice or judge initiated by the Judicial Inquiry and Review Commission. No regular counsel shall be employed for or by the Governor or any state department, institution, division, commission, board, bureau, agency, entity, or official. . . .

Code § 2.2-507(A) (emphasis added).

The use of outside counsel is strictly limited:

No special counsel shall be employed for or by the Governor or any state department, institution, division, commission, board, bureau, agency, entity, official, justice of the Supreme Court, or judge of any circuit court or district court except in the following cases:

1. When the Governor determines that, because of the nature of the legal service to be performed, the Attorney General's office is unable to render such service . . . .

2. In cases of legal services in civil matters to be performed for the Commonwealth, where it is impracticable or uneconomical for the Attorney General to render such service . . . .

3. In cases of legal services in civil matters to be performed for any state department, institution, division, commission, board, bureau, agency, entity, official, justice of the Supreme Court, or judge of any circuit court or district court where it is impracticable or uneconomical for the Attorney General's office to render such service . . . .

4. In cases where the Attorney General certifies to the Governor that it would be improper for the Attorney General's office to render legal services due to a conflict of interests, or that he is unable to render certain legal services . . . .

5. In cases of legal services in civil matters to be performed by the Virginia Office for Protection and Advocacy . . . .

Code § 2.2-510 (emphasis added).

So it appears that Norment is prohibited by law from providing the college legal advice--and for the college to solicit or receive it from him.  (That is not to say that doing so is criminal, only that it appears to be illegal.)  Unless the Governor or Attorney General authorizes Norment to provide the college legal advice.  And the Virginian-Pilot does not say whether either of them has; it only says that Norment sought, and then-Attorney General Bob McDonnell provided, an official opinion relating to the possibility of any conflict of interest between Norment's legislative role and his professorial role:

Before taking the job at William and Mary, Norment said, he got a written opinion from then-Attorney General Bob McDonnell, now the Republican candidate for governor, concluding that it did not constitute an impermissible conflict of interests.

. . . .

[Norment] declined to provide a copy of McDonnell's opinion. The McDonnell campaign also declined to release it, citing attorney-client privilege.

But where is the authorization required by Code § 2.2-510 to allow the college to receive legal advice from outside the Office of the Attorney General?  That document would not be privileged; it would not contain legal advice either to Norment (a client of the OAG in his official capacity as a member of the General Assembly) or to the college.  What was the basis for invoking the exception?  Did the Governor decide McDonnell was "unable to render such service?"  Was it "impracticable or uneconomical for the Attorney General to render such service?"  Was there a conflict of interest between the OAG and the college?

Now any lawyer could have fallen into this predicament; the impropriety here is separate and independent from Norment's elective office.  (This post is purposefully not entitled "The impropriety of Senator Tommy Norment.")  But I'd wager that everyone was so preoccupied with avoiding the appearance of graft that they forgot to even consider whether Norment could lawfully do what he is doing.  And that's why legislators shouldn't just avoid conflicts of interest; they should avoid undertakings that even hint of the appearance of a conflict of interest.

(Link to Virginian-Pilot via Vivian Paige.)

Update:  The Virginian-Pilot has run a new story reporting that then-Attorney General McDonnell's opinion reminded Norment that only the OAG could provide the college legal advice, and Norment disavowed any intention to do so.  If that's the case, then the only conflict here is between the college's impression of Norment's job and Norment's own impression--and the college is "back[ing] off" its earlier statement.

I'm still skeptical of any legislator's employment by a state or local government agency.  I don't think any legislator should be participating in budget decisions that affect his other employer and I doubt that holding two government jobs is what Jefferson had in mind when he referred to a part-time, citizen legislature.  But it doesn't look like Norment's conduct here violated any commonly held sense of propriety after all.  That was an open question after the Virginian-Pilot's original story, and I am glad it has been cleared up.

Comments

[Anon]

This is an interesting post, after a story that was itself interesting. Two questions:

1) Is it impropriety on the part of Norment, or W&M? I ask because I read the statute (for the first time, and in a hurry) as a limitation on the hiring powers of the Commonwealth and its agencies, institutions, etc. - such that WM could not properly employ Norment to engage in the practice of law.

2) Does Title 2.2 give a remedy in this case? Or would you seek a writ of mandamus or prohibition? And for that matter, who would have standing to bring such a claim? (I guess a statute providing a remedy, if it exists, might answer the standing question; but again, I don't know this part of the Code.)

[Anon]

This story has legs, at least a little bit

Updated story in the Daily Press: http://bit.ly/icae

The AG is questioning the arrangement's propriety, and WM's President is defending it while essentially acknowledging the lack of statutory authority.

[NoVA Scout]

This illustrates the general antiquity (and not in a good sense) of how business gets done in the Commonwealth by our amateur legislators. It seems highly unlikely that Mr. Norment would have been retained but for his position as a member of the General Assembly.