The Maine Legislature’s Government Oversight Committee took a historic step this week and voted to enforce compliance with its subpoena to the Maine Department of Health and Human Services. The committee, on which I serve, is seeking the department’s confidential records of four children who were allegedly killed by their parents.

The vote on Oct. 19 to take the matter to court is the result of DHHS Commissioner Jeanne Lambrew’s refusal to turn the records over to the committee. While providing them to our staff in the Office of Program Evaluation and Government Accountability, Commissioner Lambrew said she based her decision on an opinion written by Maine Assistant Attorney General Ariel Gannon.

This points to a contradictory role for the Attorney General’s Office, which we see too often in Maine. While the committee is well within its statutory authority to issue and enforce such a subpoena, the involvement of the AG’s Office in the ensuing legal battle is what creates this paradox.

The government oversight process in Maine is much different from what exists at the federal level. There, oversight typically takes place through a layered system of checks and balances enabled by provisions in the U.S. Constitution and an array of independent inspectors general embedded within federal agencies.

This process differs vastly in Maine. We rely instead on the Legislature as the primary watchdog entity through the Government Oversight Committee and our other joint standing committees. OPEGA underpins the Legislature’s investigative system to perform our important role of executive branch oversight.

The law that establishes the authority of the Government Oversight Committee — and specifically OPEGA — falls under Title 3, and that same section also establishes the committee’s broad powers as an investigative committee. Lesser known is that the AG’s Office is specifically named in the statute as the primary agency along with the state’s auditor and controller to assist GOC in executing its investigative function.

In fact, the attorney general – currently Aaron Frey – is selected by the Maine Legislature when a new Legislature is seated each biennium, not by the governor nor the electorate.

The chief deputy attorney general assisting the Government Oversight Committee, Chris Taub, was tasked to execute the subpoena. Yet in its response in an Oct. 6 letter, DHHS said it “objects to the GOC subpoena and is unable to comply with it” for the reasons Gannon wrote earlier.

Who sent the letter? None other than Gannon, who is in the same office as Taub. Attorney General Frey’s office is handling both sides of the same conflict.

So, should we just call the case Frey v. Frey?

When a law firm is placed in a similar ethical situation, it will either recuse itself entirely or pick a side to represent. Not so with Maine’s attorney general; and this is not the only time we have seen this problem play out.

In the two cases currently in the courts relating to the Central Maine Power corridor, the Attorney General in one case is siding with CMP parent company Avangrid against the Maine Legislature, and yet defending the people of Maine against Avangrid in the referendum case.

In my view, the AG’s Office is supposed to be “independent” with its head selected by the Legislature. And because of its statutory role to assist the Legislature, all communication with DHHS in this matter should stop immediately and the Office’s full resources dedicated to Maine’s Legislature. DHHS then should seek outside counsel.

This conflict between two branches of state government will undoubtedly test the limits of effective legislative oversight of the executive branch. And the conflict lands squarely at the feet of the attorney general himself. We need to find a better way to ensure Maine’s attorney general represents the interests of the people, rather than reactively protecting the executive branch.

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