Senate Bill 2733

AN ACT TO AUTHORIZE STATE AGENCIES AND OTHER STATE ENTITIES TO DIRECTLY EMPLOY LEGAL COUNSEL, WHETHER SALARIED OR ON A CASE-BY-CASE BASIS; TO PROVIDE THAT COMPENSATION OF SUCH LEGAL COUNSEL MAY BE PAID FROM ANY FUNDS APPROPRIATED OR OTHERWISE AVAILABLE TO THE APPOINTING OR EMPLOYING ENTITY; TO AMEND SECTIONS 7-5-1, 7-5-7, 7-7-225 AND 27-104-105, MISSISSIPPI CODE OF 1972, TO CONFORM; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. The executive director of any state agency, board, institution or commission is authorized and empowered to appoint or employ special counsel, on a fee or salary basis, to assist the appointing or employing entity in any or all legal matters, including, but not limited to, the preparation for, prosecution or defense of any litigation in the state or federal courts or before any federal commission or agency in which the appointing or employing entity is a party or has an interest. The approval of the Attorney General is not required for an appointment or hiring under this section; however, the compensation of any appointee or employee under this section shall be subject to the approval of the Attorney General, such approval not to be unreasonably withheld. The compensation of any appointee under this section shall not exceed recognized bar rates for similar services, and the compensation of any employee under this section shall not exceed that customarily paid to a Special Assistant Attorney General who performs similar duties; the attorney's compensation shall be paid out of any funds appropriated or otherwise available to the appointing or employing entity.

SECTION 2. Section 7-5-1, Mississippi Code of 1972, is amended as follows:

7-5-1. (1) The Attorney General provided for by Section 173 of the Mississippi Constitution shall be elected at the same time and in the same manner as the Governor is elected. His term of office shall be four (4) years and his compensation shall be fixed by the Legislature.

(2) He shall be the chief legal officer and advisor for the state, both civil and criminal, and shall provide such legal services as may be requested from time to time, without cost. He is charged with managing * * * litigation on behalf of the state in cases where other counsel has not been hired or retained by an entity authorized to do so.

(3) No arm or agency of the state government shall bring or defend a suit against another such arm or agency without prior written approval of the Attorney General.

(4) Except as expressly restricted or modified by statute or the Mississippi Constitution of 1890:

(a) He shall have the powers of the Attorney General at common law; and

(b) He may bring or defend a lawsuit on behalf of a state agency, the subject matter of which is of statewide interest. * * *

(5) The Attorney General shall intervene and argue the constitutionality of any statute when notified of a challenge thereto, pursuant to the Mississippi Rules of Civil Procedure.

(6) The qualifications for Office of the Attorney General shall be as provided for Chancery and Circuit Judges in Section 154 of the Mississippi Constitution.

SECTION 3. Section 7-5-7, Mississippi Code of 1972, is amended as follows:

7-5-7. (1) The Governor may engage counsel to assist the Attorney General in cases to which the state is a party when, in his opinion, the interest of the state requires it, subject to the action of the Legislature in providing compensation for such services.

(2) (a) The Attorney General is hereby authorized and empowered to appoint or employ Special Counsel, on a fee or salary basis, to assist the Attorney General in the preparation for, prosecution, or defense of any litigation in the state or federal courts or before any federal commission or agency in which the state is a party or has an interest.

(b) The Attorney General may designate such special counsel as Special Assistant Attorney General, and may pay such special counsel reasonable compensation to be agreed upon by the Attorney General and such Special Counsel, in no event to exceed recognized bar rates for similar services.

(3) The Attorney General may also employ special investigators on a per diem or salary basis, to be agreed upon at the time of employment, for the purpose of interviewing witnesses, ascertaining facts, or rendering any other services that may be needed by the Attorney General in the preparation for and prosecution of suits by or against the State of Mississippi, or in suits in which the Attorney General is participating on account of same being of statewide interest.

(4) The Attorney General may pay travel and other expenses of employees and appointees made hereunder in the same manner and amount as authorized by law for the payment of travel and expenses of state employees and officials.

(5) The compensation of appointees and employees made hereunder shall be paid out of the Attorney General's contingent fund, or out of any other funds appropriated to the Attorney General's Office.

SECTION 4. Section 7-7-225, Mississippi Code of 1972, is amended as follows:

7-7-225. The State Auditor shall, when conducting agency audits, test to determine whether or not the State Institutions of Higher Learning and any state agency which does not draw warrants on the Treasury have received approval of the Attorney General for any contract for legal services, the extent approval by the Attorney General is required.

SECTION 5. Section 27-104-105, Mississippi Code of 1972, is amended as follows:

27-104-105. The Department of Finance and Administration shall not process any warrant requested by any state agency for payment for legal services without first determining that the services and contract were approved by the Attorney General and the State Personnel Board, to the extent the Attorney General's approval is required; contracts for legal services performed for the Mississippi Department of Transportation in eminent domain cases shall not require approval by the State Personnel Board. The State Auditor shall test for compliance with this section.

SECTION 6. This act shall take effect and be in force from and after its passage.