House Bill 1369

AN ACT TO AMEND SECTION 7-5-1, MISSISSIPPI CODE OF 1972, TO REVISE THE NATURE OF THE ATTORNEY GENERAL'S APPROVAL OF OUTSIDE COUNSEL HIRED BY A STATE AGENCY AND TO PROVIDE THAT LITIGATION ON BEHALF OF A STATE AGENCY MUST RECEIVE THE APPROVAL OF THE AGENCY HEAD; TO BRING FORWARD SECTION 7-5-3, MISSISSIPPI CODE OF 1972, FOR PURPOSES OF AMENDMENT; TO AMEND SECTION 7-5-5, MISSISSIPPI CODE OF 1972, TO REVISE THE AUTHORITY OF THE ATTORNEY GENERAL TO RETAIN OUTSIDE COUNSEL AND TO GRANT A LIMITED FUNDS ESCALATION; TO BRING FORWARD SECTION 7-5-7, MISSISSIPPI CODE OF 1972, FOR PURPOSES OF AMENDMENT; TO AMEND SECTION 7-5-21, MISSISSIPPI CODE OF 1972, TO REVISE THE CASE DOCKET MAINTAINED BY THE ATTORNEY GENERAL; 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 BRING FORWARD SECTION 7-5-39, MISSISSIPPI CODE OF 1972, FOR PURPOSES OF AMENDMENT; TO AMEND SECTION 25-9-120, MISSISSIPPI CODE OF 1972, TO REVISE THE DUTIES OF THE PERSONAL SERVICE CONTRACT REVIEW BOARD WITH REGARD TO CONTRACTS FOR OUTSIDE COUNSEL ENTERED INTO BY THE ATTORNEY GENERAL; AND FOR RELATED PURPOSES.

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

SECTION 1. 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. He shall be the chief legal officer and advisor for the state, both civil and criminal, and is charged with managing * * * litigation on behalf of the state or of approving the outside counsel retained by an agency to manage litigation as provided in Section 5 of House Bill No. , 2007 Regular Session. 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. He shall have the powers of the Attorney General at common law and, except as provided in subsection (2) of this section, is given * * * power to bring or defend a lawsuit on behalf of a state agency, the subject matter of which is of statewide interest, and he shall intervene and argue the constitutionality of any statute when notified of a challenge thereto, pursuant to the Mississippi Rules of Civil Procedure. His qualifications for office shall be as provided for chancery and circuit judges in Section 154 of the Mississippi Constitution.

(2) No legal action on behalf of any state agency, including a suit to recoup funds expended by an agency, may be taken until ten (10) days' written notice of the proposed legal action is given to the executive director of the agency. Upon the expiration of the notice period, the Attorney General may institute suit with or without the consent of the executive director of the agency. If the executive director of the agency does not consent to the legal action, the executive director may retain counsel pursuant to Section 5 of House Bill No. , 2007 Regular Session.

SECTION 2. Section 7-5-3, Mississippi Code of 1972, is brought forward as follows:

7-5-3. There shall be no more than two (2) deputy attorneys general whose qualifications shall be the same as that of the Attorney General, who shall be appointed by the Attorney General to serve at his will and pleasure and whose compensation shall be fixed by the Legislature. The Attorney General may, in writing filed with the office of the Secretary of State, designate the deputy attorneys general to perform any duties and powers conferred on the Attorney General and to serve in his place and stead on any nonconstitutional board or commission for a particular meeting or series of called or regular meetings; and on such boards or commissions the deputy attorney general's vote, decision or signature thereon shall have the full force and effect and shall be legal and binding on the State of Mississippi as if the Attorney General had personally participated in such meeting or meetings.

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

7-5-5. (1) The Attorney General shall appoint nine (9) competent attorneys, each of whom shall be designated as an assistant attorney general. The assistants shall each possess all of the qualifications required by law of the Attorney General and shall have power and authority under the direction and supervision of the Attorney General to perform all of the duties required by law of that officer; and each shall be liable to the pains and penalties to which the Attorney General is liable. The assistants shall serve at the will and pleasure of the Attorney General, and they shall devote their entire time and attention to the duties pertaining to the department of justice as required by the general laws. The compensation of the within enumerated assistant attorneys general and all other regular assistants authorized by law shall be fixed by the Attorney General, not to exceed the compensation fixed by law for such assistants.

(2) (a) The Attorney General is hereby authorized, empowered and directed to designate three (3) of the * * *assistant attorneys general to devote their time and attention primarily to defending and aiding in the defense in all courts of any suit, filed or threatened, against the State of Mississippi, against any subdivision thereof, or against any agency or instrumentality of the state or subdivision, including all elected officials and any other officer or employee thereof. When the circumstances permit, the assistants may perform any of the Attorney General's powers and duties, including, but not limited to, engaging in lawsuits outside the state when in his opinion same would help bring about the equal application of federal laws and court decisions in every state and guaranteeing equal protection of the laws as guaranteed every citizen by the United States Constitution.

(b) To further prosecute and insure such purposes, the Attorney General is hereby further expressly authorized, empowered and directed to employ such additional counsel as special assistant attorneys general as may be necessary or advisable, on a fee or contract basis; and the Attorney General shall be the sole judge of the compensation in such cases.

(i) The Attorney General must first determine that the needed legal services cannot be adequately performed by the attorneys and supporting personnel who are employees of the Attorney General before the Attorney General may hire additional attorneys who will not be employees of the Attorney General.

(ii) The hiring shall be on an hourly basis unless the legal services cannot reasonably be obtained from attorneys in private practice under a contract providing only for the payment of hourly fees, without regard to the outcome of the matter, because of the nature of the matter for which the services will be obtained or because there are not appropriated funds available to pay the estimated amounts required under a contract providing only for the payment of hourly fees.

(iii) Any contract for services of additional counsel shall be reviewed by the Personal Service Contract Review Board created under Section 25-9-120.

(iv) No contract for services of additional counsel shall be entered into by the Attorney General until a request for proposal has been issued to at least six (6) separate law firms or solo practitioners; the Attorney General shall submit copies of all proposals to the Personal Service Contract Review Board to use as a part of the board's evaluation of the contract entered into.

(v) 1. Any contract for services of additional counsel, whether providing for set, hourly or contingent fees, must require that the contracting attorney or law firm keep current and complete written time and expense records that describe in detail the time and money spent each day in performance of the contract.

2. The contracting attorney or law firm shall permit the Attorney General, the Personal Service Contract Review Board and the State Auditor each to inspect or obtain copies of the time and expense records at any time on request.

3. On conclusion of the matter for which the legal services were obtained, the contracting attorney or law firm shall provide the Personal Service Contract Review Board with a complete written statement that describes the outcome of the matter, states the amount of any recovery, shows the contracting attorney's or law firm's computation of the amount of all fees and expenses, and contains the final complete time and expense records required under item 1 of this subparagraph. The Attorney General shall keep and maintain these records and shall annually provide a report detailing all litigation pursued with outside counsel to the Governor, Lieutenant Governor, Speaker of the House and the Chairmen of the House Judiciary "A" and Senate Judiciary, Division A Committees. This report shall include a description of the litigation, name of counsel retained, description of the terms and conditions by which outside counsel was retained, and compensation.

(3) Unless otherwise specified in the appropriation bill, upon application of the Attorney General, the Executive Director of the Department of Finance and Administration shall have the authority to approve escalations in the budget of the Attorney General not to exceed Five Hundred Thousand Dollars ($500,000.00) in any one fiscal year for the purpose of allowing the Attorney General to retain counsel to pursue litigation. The executive director shall immediately notify the Legislative Budget Office of the approval of the budget escalation. The executive director shall ensure the Legislative Budget Office receives timely, detailed and accurate information about the amount and use of the escalation authority granted under this subsection.

(4) The Attorney General may discharge any assistant Attorney General or special assistant Attorney General at his pleasure and appoint another in his stead. The assistant attorneys general shall devote their entire time and attention to the duties pertaining to the department of justice under the control and supervision of the Attorney General.

SECTION 4. Section 7-5-7, Mississippi Code of 1972, is brought forward as follows:

7-5-7. 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.

The Attorney General is hereby authorized and empowered to appoint and 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.

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.

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.

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.

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 5. Section 7-5-21, Mississippi Code of 1972, is amended as follows:

7-5-21. The Attorney General shall keep a docket of all causes in which he is required to appear or is appearing, either through his office or through retained counsel, which must * * * be open to the inspection of the public during regular business hours and must show the style of the case and the county, district, and court in which the causes have been instituted and tried, the cause number of the action, and whether they be civil or criminal. If civil, the docket must show the nature of the demand, the stage of the proceedings, the name and address of any retained or contract counsel, a memorandum of the judgment when prosecuted to judgment, any process issued thereon, whether satisfied or not, and if not satisfied, the return of the sheriff. If criminal, the docket must show the nature of the crime, the mode of prosecution, the stage of the proceedings, a memorandum of the sentence when prosecuted to a sentence, the execution thereof, if executed, and, if not executed, the reasons of delay or prevention.

SECTION 6. (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 as to the competence of the attorney and the attorney's standing in The Mississippi Bar is required for an appointment or hiring under this section. 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.

(2) The director of any state agency is absolutely entitled to retain counsel under this section if any conflict exists with the Office of the Attorney General. If the director of any state agency hires outside counsel under this section, the Attorney General shall withdraw from representation of that agency, but the Attorney General may continue to appear in any other capacity.

SECTION 7. Section 7-5-39, Mississippi Code of 1972, is brought forward as follows:

7-5-39. The Attorney General shall also represent the state, in person or by his assistant, as counsel in all suits against the state in other courts than the Supreme Court at the seat of government, and he shall, in like manner, act as counsel for any of the state officers in suits brought by or against them in their official capacity, touching any official duty or trust and triable at the seat of government. He may pursue the collection of any claim or judgment in favor of the state outside of the state.

SECTION 8. Section 25-9-120, Mississippi Code of 1972, is amended as follows:

25-9-120. (1) Contract personnel, whether classified as contract workers or independent contractors shall not be deemed state service or nonstate service employees of the State of Mississippi, and shall not be eligible to participate in the Public Employees' Retirement System, or the state employee health plan, nor be allowed credit for personal and sick leave and other leave benefits as employees of the State of Mississippi, notwithstanding Sections 25-3-91 through 25-3-101; 25-9-101 through 25-9-151; 25-11-1 through 25-11-126; 25-11-128 through 25-11-131; 25-15-1 through 25-15-23 and for the purpose set forth herein. Contract workers, i.e., contract personnel who do not meet the criteria of independent contractors, shall be subject to the provisions of Section 25-11-127.

(2) There is hereby created the Personal Service Contract Review Board, which shall be composed of the State Personnel Director, the Executive Director of the Department of Finance and Administration, or his designee, the Commissioner of Corrections, or his designee, the Executive Director of the Mississippi Department of Wildlife and Fisheries, or his designee, and the Executive Director of the Department of Environmental Quality, or his designee. The State Personnel Director shall be chairman and shall preside over the meetings of the board. The board shall annually elect a vice chairman, who shall serve in the absence of the chairman. No business shall be transacted, including adoption of rules of procedure, without the presence of a quorum of the board. Three (3) members shall be a quorum. No action shall be valid unless approved by the chairman and two (2) other of those members present and voting, entered upon the minutes of the board and signed by the chairman. Necessary clerical and administrative support for the board shall be provided by the State Personnel Board. Minutes shall be kept of the proceedings of each meeting, copies of which shall be filed on a monthly basis with the Legislative Budget Office.

(3) The Personal Service Contract Review Board shall have the following powers and responsibilities:

(a) Promulgate rules and regulations governing the solicitation and selection of contractual services personnel including personal and professional services contracts for any form of consulting, policy analysis, public relations, marketing, public affairs, legislative advocacy services or any other contract that the board deems appropriate for oversight, with the exception of any personal service contracts entered into for computer or information technology-related services governed by the Mississippi Department of Information Technology Services, any personal service contracts entered into by the Mississippi Department of Transportation, and any contract for * * * accountant, auditor, physician, dentist, architect, engineer, veterinarian and utility rate expert services. Any such rules and regulations shall provide for maintaining continuous internal audit covering the activities of such agency affecting its revenue and expenditures as required under Section 7-7-3(6)(d), Mississippi Code of 1972;

(b) Approve:

(i) All personal and professional services contracts involving the expenditures of funds in excess of One Hundred Thousand Dollars ($100,000.00); and

(ii) All contracts for legal services, whether on a set fee, contingent fee or hourly fee basis, in which the anticipated fee is in excess of One Million Dollars ($1,000,000.00);

(c) Develop standards with respect to contractual services personnel which require invitations for public bid, requests for proposals, record keeping and financial responsibility of contractors. The Personal Service Contract Review Board may, in its discretion, require the agency involved to advertise such contract for public bid, and may reserve the right to reject any or all bids;

(d) Prescribe certain circumstances whereby agency heads may enter into contracts for personal and professional services without receiving prior approval from the Personal Service Contract Review Board. The Personal Service Contract Review Board may establish a pre-approved list of providers of various personal and professional services for set prices with which state agencies may contract without bidding or prior approval from the board;

(e) To provide standards for the issuance of requests for proposals, the evaluation of proposals received, consideration of costs and quality of services proposed, contract negotiations, the administrative monitoring of contract performance by the agency and successful steps in terminating a contract;

(f) To present recommendations for governmental privatization and to evaluate privatization proposals submitted by any state agency;

(g) To authorize personal and professional service contracts to be effective for more than one (1) year provided a funding condition is included in any such multiple year contract, except the State Board of Education, which shall have the authority to enter into contractual agreements for student assessment for a period up to ten (10) years. The State Board of Education shall procure these services in accordance with the Personal Service Contract Review Board procurement regulations;

(h) To request the State Auditor to conduct a performance audit on any personal or professional service contract;

(i) Prepare an annual report to the Legislature concerning the issuance of personal service contracts during the previous year, collecting any necessary information from state agencies in making such report.

(4) No member of the Personal Service Contract Review Board shall use his official authority or influence to coerce, by threat of discharge from employment, or otherwise, the purchase of commodities or the contracting for personal or professional services under this section.

(5) The Personal Service Contract Review Board shall retain outside counsel for the purpose of advising it in reviewing contracts entered into by the Attorney General for outside legal counsel.

SECTION 9. This act shall take effect and be in force from and after July 1, 2007.