Van Hollen and business: Kinder, gentler enforcement

During Wisconsin’s recall election, Kathleen Falk made an issue out of what she viewed as lax enforcement by Wisconsin DNR Secretary Cathy Stepp, who has issued far fewer DNR enforcement actions than her predecessors.

At the time, Falk called on Gov. Scott Walker, her real target, to fire Stepp, who cited factors other than an alleged lack of enforcement.

J.B. Van Hollen, who touts an open-door policy for businesses and non-businesses, has an approach that appears to be in step with Stepp. Unlike many AGs around the nation, he’s not going to blindside a business owner who might otherwise pick up his or her morning newspaper and read about being charged with an offense.

“They can rest assured that our office, when there is an investigation, is going to do an investigation that reaches out to them and looks for information from them, keeps them apprised of what we are doing, and tries to come to a fair and just settlement of any potential wrongdoing without litigation,” he explained. “That’s in everyone’s best interests, and it’s something people can expect out of our office as long as I’m the attorney general.”

Call it the Dale Carnegie style of “AG-ing,” or call it enough to make your friendly neighborhood Democrat wretch, but there is an unmistakable economic development component to a lighter touch.

In addition, Van Hollen insists it does not mean violators get away with murder, especially in the areas where businesses usually come in contact with his office ­– consumer complaints and environmental law. “There are some businesses that will commit wrongdoing, and they will acknowledge that they did so, and that they’re sorry,” he explained. “They understand they should pay a penalty and they understand they have to fix things, and they would like to do so.

“If we spend the time and resources to attack them and to litigate against them, when we instead could have accomplished all of society’s goals by virtue of talking with them and coming up with a settlement, then we’re wasting money doing nobody any good and potentially harming other people by virtue of litigating them and trying to blindside them for no legitimate public purpose.”

Van Hollen said certain attorneys general, here and elsewhere, are not necessarily in the business of resolving things as much as they are trying to grab headlines. To him, that’s “horribly unfortunate” because these positions are, for the most part, partisan politically elected positions. Unfortunately, sometimes people allow that partisanship to influence the way they do their jobs, and some are outright ambitious crusaders, looking to use their legal authority to advance their political careers.

“I don’t think it’s anybody’s goal to take a business that’s done something wrong and drive them out of business and to eliminate the productivity they provide to society, and to eliminate the tax base, to eliminate the jobs,” he said, “but if they have done something wrong, it’s legitimate for us to try to get them to make that right, to avoid future wrongdoing, and to pay a penalty for the wrongdoing. It should hurt, but it shouldn’t be the death penalty for any business.”

Class action

Van Hollen is perhaps best known for joining the class action suit against the Affordable Care Act, a complaint that won on the narrower question of the individual mandate but lost the war to bring down the law in its entirety.  

But in the more understated part of his job, he largely flies under the radar. Depending on your point of view, that’s either a blessing or a curse.

With consumer complaints, alleged violators are issued cease-and-desist orders, and the AG’s office wants people made whole and the violator to pay a penalty. “Obviously, then you have to look at whether their whole goal was to be a fraudulent company and to abuse consumers, or was this just something they did on the side, inappropriately, and an aberration?” Van Hollen explained. “How you deal with the company is largely based on where you think they fall, and in what category.”

A similar principle exists with environmental violations. If the state expects law-abiding companies and citizens to compete in the marketplace, they can’t be undercut by those spending less money in the process of failing to comply with regulations. Even the business community, he asserted, wants those who are cutting corners and not complying with the law to be held accountable, a point that Falk noted as well in discrediting the notion that strong enforcement is bad for business.

“It’s important that violators can’t be unjustly enriched, and it’s important that they are not allowed to continue to violate the law,” Van Hollen said, “but it’s equally important that if these are oversights or they are errors that they readily admit to and want to correct, that it’s not our job to put them out of business because they are not out there to harm society unjustly. They just made mistakes or did things wrong that are correctible.

“Those are really the categories where we encounter the business community.”

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