2005 Legislation
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HOUSE BILL NO. 293 – Attorney General, duties

HOUSE BILL NO. 293

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H0293......................................................by STATE AFFAIRS
ATTORNEY GENERAL - DUTIES - Amends and repeals existing law to provide that
a department, agency, office, officers, board, commission, institution or
other state entity may be represented by or obtain its legal advice from an
attorney at law other than the Attorney General.
                                                                        
03/03    House intro - 1st rdg - to printing
03/04    Rpt prt - to St Aff

Bill Text


                                                                        
                                                                        
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-eighth Legislature                   First Regular Session - 2005
                                                                        
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                                                                        
                                     HOUSE BILL NO. 293
                                                                        
                                 BY STATE AFFAIRS COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO THE OFFICE OF THE  ATTORNEY  GENERAL;  AMENDING  SECTION  67-1401,
  3        IDAHO CODE, TO REVISE DUTIES OF THE ATTORNEY GENERAL AND TO MAKE TECHNICAL
  4        CORRECTIONS;  AMENDING  SECTION  67-1406,  IDAHO  CODE,  TO PROVIDE THAT A
  5        DEPARTMENT, AGENCY, OFFICE, OFFICERS, BOARD,  COMMISSION,  INSTITUTION  OR
  6        OTHER  STATE  ENTITY MAY BE REPRESENTED BY OR OBTAIN ITS LEGAL ADVICE FROM
  7        AN ATTORNEY AT LAW OTHER  THAN  THE  ATTORNEY  GENERAL;  AMENDING  SECTION
  8        67-1408,  IDAHO CODE, TO PROVIDE FOR BILLING TO AGENCIES WHEN THE ATTORNEY
  9        GENERAL HAS BEEN REQUESTED TO PROVIDE LEGAL SERVICES TO THE STATE AGENCIES
 10        AND TO DELETE LANGUAGE STATING THAT THE ATTORNEY GENERAL SHALL MANAGE  THE
 11        ATTORNEY GENERAL'S OFFICE TO PROVIDE UNIFIED LEGAL SERVICES BASED UPON THE
 12        LEGAL NEEDS OF THE STATE; AND REPEALING SECTION 67-1409, IDAHO CODE.
                                                                        
 13    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 14        SECTION  1.  That  Section 67-1401, Idaho Code, be, and the same is hereby
 15    amended to read as follows:
                                                                        
 16        67-1401.  DUTIES OF ATTORNEY GENERAL. Except as otherwise provided in this
 17    chapter, iIt is the duty of the attorney general:
 18        1.  To perform all legal services for the state and to represent the state
 19    and all departments, agencies, offices, officers, boards, commissions,  insti-
 20    tutions  and other state entities, in all courts and before all administrative
 21    tribunals or bodies of any nature. Representation shall be provided  to  those
 22    entities exempted pursuant to the provisions of section 67-1406, Idaho Code To
 23    attend the supreme court and prosecute or defend all causes to which the state
 24    or  any  officer thereof, in his official capacity, is a party, and all causes
 25    to which any county may be a party, if the county requests; and also to prose-
 26    cute and defend all the abovementioned causes in  the  United  States  courts.
 27    Whenever  required  to  attend  upon  any court or administrative tribunal the
 28    attorney general shall be allowed necessary and actual  expenses,  all  claims
 29    for which shall be audited by the state board of examiners.
 30        2.  To  advise  all departments, agencies, offices, officers, boards, com-
 31    missions, institutions and other state entities in all matters involving ques-
 32    tions of law, if requested.
 33        3.  After judgment in any of the causes referred to in the first  subdivi-
 34    sion  subsection  1. of this section, to direct the issuing of such process as
 35    may be necessary to carry the same into execution.
 36        4.  To account for and pay over to the proper officer all moneys  received
 37    which belong to the state.
 38        5.  To  supervise  nonprofit  corporations,  corporations,  charitable  or
 39    benevolent societies, person or persons holding property subject to any public
 40    or  charitable  trust  and  to enforce whenever necessary any noncompliance or
 41    departure from the general purpose of such trust and, in order  to  accomplish
 42    such purpose, said nonprofit corporations, corporations, charitable or benevo-
 43    lent  societies,  person  or persons holding property subject to any public or
                                                                        
                                           2
                                                                        
  1    charitable trust are subject at all times to examination by the attorney  gen-
  2    eral, on behalf of the state, to ascertain the condition of its affairs and to
  3    what  extent,  if  at  all, said trustee or trustees may have failed to comply
  4    with trusts said trustee or trustees have assumed or may  have  departed  from
  5    the  general  purpose  for which it was formed. In case of any such failure or
  6    departure, the attorney general shall institute, in the name of the state, any
  7    proceeding necessary to enforce compliance with the terms of the trust or  any
  8    departure therefrom.
  9        6.  To  give  an  opinion  in  writing, without fee, to the legislature or
 10    either house thereof, or any senator or representative, and to  the  governor,
 11    secretary  of  state,  treasurer,  state controller, and the superintendent of
 12    public instruction, when requested, upon any question of law relating to their
 13    respective offices. The attorney general shall keep a record  of  all  written
 14    opinions  rendered  by the office and such opinions shall be compiled annually
 15    and made available for public inspection. All costs incurred in  the  prepara-
 16    tion  of said opinions shall be borne by the office of the attorney general. A
 17    copy of the opinions shall be furnished to the supreme court and to the  state
 18    librarian.
 19        7.  When  required  by  the public service, to repair to any county in the
 20    state and assist the prosecuting attorney thereof in the discharge of duties.
 21        8.  To bid upon and purchase, when necessary, in the name  of  the  state,
 22    and under the direction of the state controller, any property offered for sale
 23    under execution issued upon judgments in favor of or for the use of the state,
 24    and to enter satisfaction in whole or in part of such judgments as the consid-
 25    eration for such purchases.
 26        9.  Whenever  the  property of a judgment debtor in any judgment mentioned
 27    in the preceding subdivision subsection has been sold under a prior  judgment,
 28    or  is subject to any judgment, lien, or encumbrance, taking precedence of the
 29    judgment in favor of the state, under the direction of the  state  controller,
 30    to  redeem  such  property from such prior judgment, lien, or encumbrance; and
 31    all sums of money necessary for such redemption must, upon the  order  of  the
 32    board of examiners, be paid out of any money appropriated for such purposes.
 33        10. When necessary for the collection or enforcement of any judgment here-
 34    inbefore  mentioned,  to institute and prosecute, in behalf of the state, such
 35    suits or other proceedings as may be necessary to set aside and annul all con-
 36    veyances fraudulently made by such judgment debtors; the cost necessary to the
 37    prosecution must, when allowed by the board of examiners, be paid out  of  any
 38    appropriations for the prosecution of delinquents.
 39        11. To  exercise all the common law power and authority usually appertain-
 40    ing to the office and to discharge the other duties prescribed by law.
 41        12. To report to the governor, at the time required by this code, the con-
 42    dition of the affairs of the attorney general's  office  and  of  the  reports
 43    received from prosecuting attorneys.
 44        13. To  appoint deputy attorneys general and special deputy attorneys gen-
 45    eral and other necessary staff to assist in the performance of the  duties  of
 46    the  office.  Such  deputies and staff shall be nonclassified employees within
 47    the meaning of section 67-5302, Idaho Code.
                                                                        
 48        SECTION 2.  That Section 67-1406, Idaho Code, be, and the same  is  hereby
 49    amended to read as follows:
                                                                        
 50        67-1406.  EMPLOYMENT OF ATTORNEYS. RESTRICTED -- EXEMPTIONS. Notwithstand-
 51    ing  any  other  provision  of  law  to the contrary, no A department, agency,
 52    office, officers, board, commission, institution or other state  entity  shall
 53    may be represented by or obtain its legal advice from an attorney at law other
                                                                        
                                           3
                                                                        
  1    than the attorney general. except as follows:
  2        (1)  The  legislative and judicial branches of government and the governor
  3    may employ attorneys other than those under the supervision  of  the  attorney
  4    general,  and  such  attorneys may appear in any court. However, such entities
  5    may, upon request, utilize the attorney general's legal services.
  6        (2)  Those state entities within the department of self-governing agencies
  7    which are enumerated in sections 67-2601(2)(a), 67-2601(2)(b) and  67-2601(3),
  8    Idaho Code, and colleges and universities may employ private counsel to advise
  9    them and represent them before courts of the state of Idaho. Such entities may
 10    also obtain legal services from the attorney general on such terms as the par-
 11    ties may agree.
 12        (3)  Whenever  the  attorney  general  determines  that it is necessary or
 13    appropriate in the public interest, the attorney general  may  authorize  con-
 14    tracts for legal services pursuant to the provisions of section 67-1409, Idaho
 15    Code.
 16        (4)  The  provisions of section 67-1401, Idaho Code, shall govern the nor-
 17    mal relationship between the attorney general and the state  entities  in  the
 18    executive  branch of state government. However, if after consultation with the
 19    attorney general, the governor determines in his sole  judgment,  which  shall
 20    not  be subject to judicial review, that counsel assigned to represent or give
 21    legal advice to any state entity, other than the  lieutenant  governor,  state
 22    controller,  state  treasurer,  secretary  of state, attorney general, and the
 23    superintendent of public instruction, cannot effectively  advocate  or  pursue
 24    the policies of the governor, the governor shall request that other counsel be
 25    provided  by the attorney general, and the attorney general shall provide from
 26    within the office of the attorney general or obtain from outside the office of
 27    the attorney general, depending upon the request of  the  governor,  qualified
 28    counsel acceptable to the governor to represent such state entity.
 29        (5)  Any  separate  counsel  employed pursuant to the foregoing exceptions
 30    shall be compensated with funds appropriated to such state entity, unless such
 31    separate counsel shall have been employed at the request or convenience of the
 32    attorney general or because of a conflict in representation  by  the  attorney
 33    general.
                                                                        
 34        SECTION  3.  That  Section 67-1408, Idaho Code, be, and the same is hereby
 35    amended to read as follows:
                                                                        
 36        67-1408.  BILLING OF STATE ENTITIES FOR LEGAL SERVICES. The attorney  gen-
 37    eral, in rendering assistance to the departments, agencies, offices, officers,
 38    boards,  commissions,  institutions  and other state entities, when requested,
 39    shall charge for all costs of such assistance as determined pursuant  to  sec-
 40    tion  67-1407,  Idaho  Code, including, but not limited to, salaries of attor-
 41    neys, paralegals, administrative, clerical and other personnel,  investigative
 42    services,  independent  contractors,  operating  expenses  and  capital outlay
 43    expenses of the office of the attorney general. Whenever the attorney  general
 44    determines  that  it would be beneficial to physically locate attorneys within
 45    an agency, when the attorney general has been requested by the agency to  pro-
 46    vide  legal services, the attorney general and agency may enter into an agree-
 47    ment defining which operating, capital or other expenses will be paid  by  the
 48    attorney general and which expenses will be paid by the agency.
 49        The attorney general shall manage the attorney general's office to provide
 50    unified  legal services based upon the legal needs of the state. For this pur-
 51    pose the attorney general may, during any fiscal year, assign personnel  based
 52    upon the legal needs existing regardless of the source of funding therefor.
                                                                        
                                           4
                                                                        
  1        SECTION  4.  That  Section 67-1409, Idaho Code, be, and the same is hereby
  2    repealed.

Statement of Purpose / Fiscal Impact



                       STATEMENT OF PURPOSE

                             RS 15044

This change in the law would allow a department, agency, office,
officers, board, commission, institution or other state entity to
obtain its legal advice from an attorney at law other than the
Attorney General.


                           FISCAL NOTE

It could be a positive or negative impact to the state entity. 
The state entity would be able to choose and budget accordingly
as they do today.




Contact
Name:  Rep. Ann Rydalch 
Phone: 208-332-1000


STATEMENT OF PURPOSE/FISCAL NOTE                     H 293