Many Virginians are versed in ethical and conflicts-of-interest matters as a result of the numerous and well-publicized fracases that have embroiled the Commonwealth. So, here’s a question:
Is it ethical and/or a conflict of interest for a Commonwealth’s Attorney as the head of an allegedly not-for-profit organization to sue state or federal government agencies?
At the end of December 2017, the Free Market Environmental Law Clinic (formerly the George Mason Environmental Law Clinic) elected a new chairperson of its governing board of directors, Matthew Hardin, 28. The new chairperson had been elected Commonwealth’s Attorney for Greene County in the November 2017 election by 67 votes.
Ostensibly at the behest of the organization’s new board of directors (hereinafter FMELC), Hardin demanded from David Schnare, the prior head of the group, an accounting of the assets and funds belonging to FMELC. This demand, in turn, uncovered the fact that Schnare had botched the initial legal documents and procedures for establishing it as a not-for-profit organization under IRS regulations; this error threatened its existence and liability for funds under its jurisdiction. The stakes are estimated between $800,000 and $900,000. Hardin commenced several lawsuits against FMELC and Schnare.
Ironically—or not—Schnare is prominently noted on Hardin’s campaign website (matthewhardin.com) for his endorsement (August 2017), praising Hardin, who “stepped up and took over some of my workload” in cases for the US Supreme Court so Schnare could concentrate full time on his service at EPA under Scott Pruitt and on the presidential transition team.
Hardin graduated from Appalachia School of Law in 2014 and was “authorized to practice law” that year, according to Avvo, a lawyer website, while another listing indicates 3 years’ experience in environmental law. According to a New York Times article (www.nytimes.com/2018/07/11/
We employed the term “ostensibly” regarding Hardin’s demand for an accounting because no record of the identity of FMELC’s new board of directors could be located. “Allegedly” was also used to describe its not-for-profit status since that issue remains to be resolved. Notwithstanding the sordid internecine struggle among several right wing environmental activists, the ethical and conflicts-of-interest questions survive.
Do ethical canons of attorney conduct exist that limit or prohibit a Commonwealth’s Attorney from engaging in lawsuits against state and/or federal agencies, even where such legal actions emanate from private organization in which the Virginia officer is an officer? Are there opinions of the Virginia Attorney General commenting upon such? How much time can a Commonwealth’s Attorney devote to an avocational interest while discharging the duties of the constitutional office? And, finally, does there not exist, in the least, an appearance of impropriety in a state official engaging in such conduct? Of course, Mr. Hardin himself could determine that issue.
Not having ever heard the details of this, I found your article kind of hard to follow. I am the most ethically oriented person I know, so the headline caught my eye, but perhaps a simplified easy-to-follow summary, up front, of the exact OCI, would be good. Perhaps 3 or 4 bullet points could do the job. But thank you for bringing such situations to our attention.
Almost by definition, ethics questions tend to be difficult to parse. Some conflicts of interest (VA past Governor) seem simple until courts and lawyers hack at them. This situation presents a hypothetical ethical/conflicts issue further complicating its reporting. But…should the matter come to pass, we trust your attention to our alert is a reminder and a basis to explain it to another.
Thanks for the explanation, Jim. We always encourage ongoing conversation.
Thanks, Howard, for engaging.