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HOUSE OF REPRESENTATIVES - FLOOR VERSION
STATE OF OKLAHOMA
1st Session of the 58th Legislature (2021)
COMMITTEE SUBSTITUTE
FOR
HOUSE BILL NO. 2600 By: Roberts (Sean)
COMMITTEE SUBSTITUTE
An Act relating to counties and county officers;
providing for right of confidential communications
with legal counsel; defining certain conduct to
constitute conflict of interest; prescribing
procedures for district attorney office based upon
prior representation in certain matters; authorizing
waiver of conflict; prescribing procedures for
referral of matters to the Attorney General;
providing for impeachment of district attorney for
violation of requirements; providing certain conduct
constitutes misuse of state funds; amending 19 O.S.
2011, Section 215.4, which relates to legal
representation; providing for county to engage legal
counsel; providing for approval by board of county
commissioners; authorizing retention of separate
counsel; amending 19 O.S. 2011, Section 215.5, which
relates to advice to cou nty officers; providing
exception based on retention of separate counsel;
authorizing retention of separate counsel; amending
19 O.S. 2011, Section 215.37M, which relates to
contract with private attorneys; providing for
discretion by board of county commi ssioners with
respect to civil actions; providing special assistant
district attorneys deemed agents of district attorney
offices with respect to conflict of interest;
amending 19 O.S. 2011, Section 431, which relates to
certain appeals; modifying procedur es related to
appeals based on petition process; providing for
codification; and declaring an emergency.
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BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 215.1A of Title 19, unless there
is created a duplication in numbering, reads as follows:
A. All persons, in both their official capacities and their
individual capacities, have a right to be able to speak
confidentially to thei r legal counsel and receive confidential
advice from that counsel. It is a conflict of interest for a
district attorney's office to investigate or prosecute any person or
entity, or the employees, trustees and agents of an entity, for whom
the prosecutor's office has acted as legal counsel, whether that
person or entity was acting in their official capacity or in their
individual capacity.
B. If a district attorney's office becomes aware of potential
criminal activity by a person or entity for whom the di strict
attorney's office has acted at any time as legal counsel, the
district attorney's office may:
1. Inform the person or entity, and ask if the person or entity
wishes to waive the conflict of interest; or
2. Refer the matter to the Attorney General' s office; or
3. Take no action.
C. If the person or entity waives the conflict of interest,
then the district attorney's office may proceed with the
investigation and/or prosecution.
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D. If the district attorney's office refers the matter to the
Attorney General, the Attorney General may:
1. Investigate and/or prosecute the matter; or
2. Refer the matter to a different district attorney's office
for investigation and/or prosecution; or
3. Take no action.
E. A district attorney whose office investigate s and/or
prosecutes a matter in violation of this act shall be subject to
impeachment.
F. The use of state resources for an investigation and/or
prosecution in violation of this act shall constitute a misuse of
state funds. This section shall apply only to counties with a
population exceeding two hundred fifty thousand (250,000).
SECTION 2. AMENDATORY 19 O.S. 2011, Section 215.4, is
amended to read as follows:
Section 215.4 The Each county is entitled to counsel of its own
choice, as determined by the board of county commissioners. Except
where a county has retained separate counsel and then only for civil
matters, not criminal matters, the district attorney, assistant
district attorneys, or special assistant district attorneys
authorized by subsection C of Section 215.37M of this title, shall
appear in all trial courts and prosecute all actions for crime
committed in the district, whether the venue is changed or not; the
district attorney or assistant district attorneys shall pr osecute or
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defend in all courts, state and federal, in any county in this
state, all civil actions or proceedings in which any county in the
district is interested, or a party unless representation for the
county is provided pursuant to subsection A of Sec tion 215.37M of
this title; and the district attorney or assistant district
attorneys shall assist the grand jury, if required, pursuant to
Section 215.13 of this title. The district attorney may at all
times request the assistance of district attorneys, assistant
district attorneys, district attorney investigators from other
districts, or any attorney employed by the District Attorneys
Council who then may appear and assist in the prosecution of actions
for crime or assist in investigation of crime in lik e manner as
assistants or investigators in the district. Nothing in this
section shall be construed to inhibit county officers from retaining
their own separate counsel as allowed by law. This section shall
apply only to counties with a population exceed ing two hundred fifty
thousand (250,000).
SECTION 3. AMENDATORY 19 O.S. 2011, Section 215.5, is
amended to read as follows:
Section 215.5 The Except where the county has retained separate
counsel, the district attorney or his ass istants shall give opinion
and advice to the board of county commissioners and other civil
officers of his counties when requested by such officers and boards,
upon all matters in which any of the counties of his district are
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interested, or relating to the duties of such boards or officers in
which the state or counties may have an interest. Nothing in this
section shall be construed to inhibit county officers from retaining
their own separate counsel as allowed by law. This section shall
apply only to counties with a population exceeding two hundred fifty
thousand (250,000).
SECTION 4. AMENDATORY 19 O.S. 2011, Section 215.37M, is
amended to read as follows:
Section 215.37M A. If the district attorney and At the
discretion of the board of county commissioners of any county agree,
legal representation in any civil case in which the county is
interested or a party and the district attorney is required to
represent the county pursuant to Section 215.4 of this title may be
provided by contract with a private attorney. The costs of such
contract shall be paid by the board of county commissioners out of
its account for general government operation, or other account, as
may be appropriate.
B. If the district attorney and At the discretion of the board
of county commissioners of any county agree, legal representation in
any civil case in which a county officer or employee is a party and
the district attorney is required to represent the county pursuant
to Section 215.25 of this title may be provided by contract with a
private attorney. The costs of such contract shall be paid by the
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board of county commissioners out of its account for general
government operation, or other account, as may be appropriate.
C. If a district attorney and th e District Attorneys Council
agree, prosecution of any criminal matter may be provided by
contract with an attorney not employed by a district attorney, who
shall be designated as a special assistant district attorney, if the
case load of the office of the district attorney is such that
adequate representation of the interest of the state is not possible
without appointment of one or more special assistant district
attorneys. The special assistant district attorney shall be
appointed by the district attorn ey. The special assistant district
attorney may serve with or without compensation ,; however,
compensation shall be allowed only if the cost of compensation can
be paid out of funds for the current fiscal year, designated for the
salaries and operating ex penses, for the office of the district
attorney requesting the appointment or appointments. No
supplemental appropriations shall be authorized for appointment of
special assistant district attorneys. A special assistant district
attorney appointed by the district attorney shall be deemed an agent
of the district attorney's office in determining whether a conflict
of interest exists pursuant to this act.
D. If the district attorney and the board of education of any
school district agree, legal representat ion in any ad valorem tax
matter in which the district attorney is required to represent the
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school district may be assisted by an attorney employed or retained
by the school district. The board of education is authorized to pay
the costs of such represen tation out of its account for general
government operation, or other account, as may be appropriate.
However, this subsection shall not be construed to permit a school
district or any other entity to be a party to the proceeding or give
standing to such entity to be a party to the civil case in which the
county is interested. This section shall apply only to counties
with a population exceeding two hundred fifty thousand (250,000).
SECTION 5. AMENDATORY 19 O.S. 2011, Section 431, is
amended to read as follows:
Section 431. From all decisions of the board of commissioners,
upon matters properly before them, there shall be allowed an appeal
to the district court by any persons aggrieved, including the county
by its district attorne y, upon filing a bond with sufficient
penalty, and one or more sureties to be approved by the county
clerk, conditioned that the appellant will prosecute his or her
appeal without delay, and pay all cost that he or she may be
adjudged to pay in the said di strict court; said bond shall be
executed to the county, and may be sued in the name of the county
upon breach of any condition therein ; provided, that the district
attorney, upon the written demand of at least fifteen (15)
freeholders of the county, shall take an appeal from any action of
the board of county commissioners when said action relates to the
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interest or affairs of the county at large or any portion thereof,
in the name of the county, when he deems it to the interest of the
county so to do; and in such case no bond shall be required or given
and upon serving the notice provided for in the next section the
county clerk shall proceed the same as if a bond had been filed;
provided, further, that if the district attorney shall fail or
refuse to appeal after the written demand of the said fifteen (15)
freeholders, then any . Any resident taxpayer of the county may be
considered a person aggrieved and may appeal upon filing a bond with
sufficient penalty, as provided in the foregoing portion of this
paragraph. This section shall apply only to counties with a
population exceeding two hundred fifty thousand (250,000).
SECTION 6. It being immediately necessary for the preservation
of the public peace, health or safety, an emergency is here by
declared to exist, by reason whereof this act shall take effect and
be in full force from and after its passage and approval.
COMMITTEE REPORT BY: COMMITTEE ON GENERAL GOVERNMENT, dated
02/25/2021 - DO PASS, As Amended.