Now that the gubernatorial nominees have been chosen, we can expect to hear more about their leadership philosophies. One issue that likely will garner little attention but will have far-reaching implications is this: Should the new governor strictly enforce Executive Order No. 6, issued by Gov. Jim Florio in 1990, which requires that all state departments and agencies rely exclusively on the attorney general for legal counsel?
At first glance, this may seem like a bureaucratic detail. In practice, the question of who advises state officials on the law can significantly shape how decisions are made, how policies are implemented, and how much authority the governor actually wields. When that legal counsel is the attorney general — a lawyer nominated by and almost always an ally of the governor — the governor will possess greater power and control over state agencies and departments. On the other hand, when EO 6 is not enforced, legal advice will be dispensed by lawyers within the departments and agencies themselves, affording greater independence.
The opinions expressed herein are those of the author and do not reflect the views of Lowenstein Sandler LLP.
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