DHS has paid outside attorneys more than $6.3 million to defend the agency and its governing commissioners against an ongoing class-action lawsuit even though the agency's commissioners never publicly voted to approve the legal contracts.
The federal lawsuit and hiring of private attorneys were secretly discussed only in executive sessions with the Department of Human Services commissioners.
?I would think it is a decision that should be made in a public meeting with a public vote,? said DHS Commissioner Steven Dow of the contracts, given the large amount of money involved.
Dow, a Yale Law School graduate, questions whether DHS violated the Open Meeting Act and another law dealing with the process for hiring outside lawyers.
Agendas of commission meetings failed to mention discussions were to take place regarding that particular lawsuit and hiring of outside counsel. The agendas contained only a general note that status reports on various types of legal actions would be presented.
Vagueness in agendas
Attorney General Scott Pruitt and Oklahoma County District Attorney David Prater recently criticized such vagueness in agendas. Pruitt told the Commissioners of the Land Office it needed to be specific in listing legal cases to be discussed in executive sessions.
Charles Waters, DHS general counsel, said he doesn't believe any laws were violated.
The bulk of the money ? nearly $5 million in attorneys fees and more than $1 million in expenses ? has gone to Riggs, Abney, Neal, Turpen, Orbison & Lewis, a large law firm with offices in Oklahoma City, Tulsa and Denver.
Payments began in March 2008. The firm already has billed the state for more than 33,000 hours with hourly rates of $185 to $200 an hour and some discounts, records show.
DHS also paid more than $300,000 in fees and expenses to attorney Kent Meyers of Crowe & Dunlevy. His hourly rate to the state is $300 an hour.
The Riggs-Abney contract was renewed by DHS Director Howard Hendrick and Waters in the summer 2010 over the strong objections of Dow, who questioned whether proper procedures were followed.
?I was quite explicit in my request that an application (to renew the contract) not be submitted to the attorney general without my having the opportunity to review it prior to its submission,? Dow wrote in a terse June 30, 2010, email to Hendrick, Waters and Commission Chairman Richard DeVaughn. ?It appears as though my explicit request was disregarded.?
Waters responded the next day with an email that said no vote was necessary.
?Contracting authority is an executive function of the agency not requiring the commission's formal approval,? Waters wrote. ?During executive session the commissioners have expressed their desire to continue the Riggs-Abney representation.?
?The other eight commissioners wish to continue DHS' contractual relationship with Riggs-Abney and for that law firm to continue to represent them as party defendants named solely in their ?official' capacity in the Children's Rights lawsuit (as you are),? Waters wrote in another July 1, 2010, email. ?Filing an application for contract approval with the attorney general is a requisite step to implement that policy.?
Concerns raised
Dow said Waters' emails raise concerns.
First of all, Dow said he believes the law does require commissioners' approval to enter into outside legal contracts.
He cited a state law which says: ?The Commission shall not contract for representation by private legal counsel unless approved by the Attorney General.?
That law implies the commission can contract for private legal representation if approval has been obtained from the attorney general, but makes no mention of DHS' director or general counsel having authority to contract for outside legal representation, Dow said.
Dow said Waters' email comment that the other eight commissioners approve of the contract with Riggs-Abney also raises legal questions.
?How do you know that if no vote was taken?? Dow asked. ?You are not allowed to vote in executive session.?
Waters told The Oklahoman that no vote was taken during the executive session. He said his email statements were based on positive comments other commissioners made about the contracts while behind closed doors.
Waters said he believes he and Hendrick have the authority under the Oklahoma Constitution to hire outside attorneys without a commission vote. The constitution says the commission is to select a director to ?serve as the executive and administrative officer of the department.?
?The director of human services as the chief executive and administrative officer of DHS is empowered under the Oklahoma Constitution and state law to enter into such contracts for professional services on behalf of the agency,? said Richard Freeman, a DHS assistant general counsel. ?Neither state law nor agency policy requires OKDHS' contracts for professional services to be competitively bid or to be formally approved by the Commission.?
Renewed or extended
Waters noted that DHS had to obtain approval from the attorney general's office to use outside attorneys. The original contract has since been renewed or extended 13 times to cover escalating legal costs.
Pruitt, the attorney general, prefers to have attorneys within his office assist agencies, rather than having them hire outside attorneys, but recognizes that's not always possible, a spokeswoman said.
?This instance demonstrates the need for greater accountability in the retention of private attorneys,? the spokeswoman said. ?The contract in this case was approved by a prior administration.?
With the trial scheduled to start in a few months, ?it would have been irresponsible for our office to not approve a state agency's request? because failure to do so ?could have increased the state's exposure,? she said.
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