I was saddened, but not altogether surprised, to see this tweet about a recent advisory opinion from Attorney General Daniel Cameron:
"@GovAndyBeshear doesn’t like the Department of Fish & Wildlife Resources-so he instructed his Finance Cabinet to ignore the law to cripple the Department.
"Beshear’s Big Government overreach won’t be tolerated."
Above his signature, the tweet proclaimed, "Attorney General Cameron defends state Fish & Wildlife agency from Beshear administration."
Cameron provided a link to an office press release which in turn linked to the advisory opinion.
It involves recent legislative changes to statutes governing the Kentucky Department of Fish and Wildlife Resources inexplicably intended to carve out broad exceptions to the normal checks and balances associated with procurement. It was written by a political appointee and non-merit attorney whose former law firm biography gives no indication of any particular expertise in the area of procurement law.
I suppose I should be grateful that the tweet did not appear on Cameron's far more active campaign account -- @DanielCameronAG. That would have been an overt nod to the politicization of the advisory opinion function within his office.
It's not the first time Cameron has used the advisory opinion function to advance his political agenda. Who can forget the unsolicited advisory opinion interpreting SB 150 to refute Kentucky Department of Education guidance? It is, however, the first time -- to the best of my knowledge -- he has publicly paraded his ignorance and abuse of the function and duties of the Office of the Attorney General.
SUBORDINATING PUBLIC POLICY AND PRECEDENT TO POLITICS
In February, Cameron abandoned any pretense of neutrality as administrative adjudicator, under state law, of open records appeals. He sought Supreme Court approval to file a memorandum in support of the City of Shively Police Department in the department’s petition for review of the Court of Appeals’ opinion, Courier Journal, Inc. v Shively Police Department.
The opinion, a clear victory for open government, favored public access to certain law enforcement records in an open investigation and rejected Shively's clearly erroneous interpretation of a mandatory disclosure provision.
Now he has compounded this outrage by abandoning any pretense of neutrality in rendering an advisory opinion requested by and for a public agency -- the Department of Fish and Wildlife Resources -- he "likes." The opinion's outcome was never in doubt -- any more than was the outcome of a 2021 open records appeal involving the Fish and Wildlife Commission. The resulting open records decision upended the law by declaring that commissioners' electronic communications -- about commission business -- conducted on private devices or accounts were not public records subject to the open records law.
Not unlike another state attorney general --Texas's Ken Paxton -- who was recently impeached for, among other things, misusing his official power to administer the state’s public information laws by directing employees to act contrary to the law on an open records request and misusing his official power to issue an advisory opinion to help a friend and ally.
Paxton was acquitted, but both he and Cameron have tarnished the open records and advisory opinions function of their offices by injecting politics into statutory functions that can least afford to be politicized.
A third year University of Kentucky law student suggested in a 1950 law journal article entitled "The Advisory Opinion Function of the Attorney General" that there was "no abuse so bad as the use of the function for political purposes."
he lamented, "such use has been made of it by both requesters and advisors."
Akers, Dee Ashley (1950) "The Advisory Opinion Function of the Attorney General," Kentucky Law Journal: Vol. 38: Iss. 4, Article 4.
Available at: https://uknowledge.uky.edu/klj/vol38/iss4/4
I am a veteran of the Kentucky Attorney General's once prolific advisory opinion branch, simply known as "Opinions" when I arrived in the Office of the Attorney General in 1991. I was not, with limited exception, an advisory opinion writer. Instead, I focused on open records and open meetings opinions, later designated decisions.
But I counted several merit system attorneys in the Opinions Branch my closest friends and mentors. They were, to a person, fiercely independent and unwilling to bend on matters of legal principle. Their former colleagues had, in some cases, served the Office of the Attorney General and the opinions functions as far back as the 1940s -- most were also non-political merit system-protected attorneys with vast knowledge in the areas on which they wrote. They were not subject to termination on purely political grounds.
They instilled in me an understanding of the tradition of the function, and, apropos politically driven advisory opinions, the importance of maintaining personal and professional integrity.
Not every advisory opinion -- or open records/open meetings decision -- that issued from the Kentucky Office of Attorney General during my 25 years of service to the office was entirely free of the taint of politics, but most were. Those that were not did not bear the signature of any member of the career staff in the Attorney General's Opinion Branch.
These lessons are sadly lost on the latest generation of attorneys general and their staffs -- certainly in Texas and Kentucky. Their obsession with consolidating power and advancing up the next rung of the political ladder blind them to the immense harm they do.
More's the pity.