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SPONSOR: |
Hobbs |
DATE TYPED: |
2/5/02 |
HB |
251 |
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SHORT TITLE: |
Legal Representation of State |
SB |
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ANALYST: |
J. Sandoval |
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APPROPRIATION
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Appropriation
Contained |
Estimated
Additional Impact |
Recurring or Non-Rec |
Fund Affected |
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FY02 |
FY03 |
FY02 |
FY03 |
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NFI |
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(Parenthesis
( ) Indicate Expenditure Decreases)
State Land Office
No Response
The Department of Finance and Administration
The Office of the Governor
SUMMARY
House Bill 251 amends current language and
enacts new language that establishes a much more defined role that the Attorney
General is to have part in, when representing a governmental entity or an
employee of that entity acting within the scope of his employment. This bill mandates stronger communication
between the Attorney General, entities represented by the Attorney General and
the Governor. When it appears that the
Attorney General’s interest in a matter conflicts with the interests of an
officer or employee that is being represented by the Attorney General, the
officer or employee may employ independent legal counsel.
This bill also amends section 36-1-22 NMSA 1978
by taking the Attorney General out of this statute that authorizes the State’s
district attorneys to compromise or settle a suit or proceeding, or grant a
release or enter satisfaction in whole or in part, of a claim or judgment in
the name of the county or take other appropriate action.
Significant
Issues
The governmental entities that this bill refers
to are the Governor, Lieutenant Governor, Secretary of
State, State Auditor, Commissioner of Public
Lands and a governmental entity subject to the executive direction of one of
the foregoing officers.
ADMINISTRATIVE IMPLICATIONS
This bill does not
define how independent legal counsel is to be paid for.
TECHNICAL ISSUES
It would be advisable
for the term “matter” (as used, for example, in the provision requiring the attorney
general to keep the client agency “reasonably informed about the status of a matter”)
to be defined in section 1 of this bill.
According to the State
Land Office there appears to be a conflict between Section 1 (conferring ultimate
case management and settlement authority on the client agency) and Section
2(A)(1) (conferring power on the attorney general “to take any action on behalf
of the state”). A court would harmonize
the two sections, but inserting “subject to Section 1” at the beginning of
Section 2(A)(1) would eliminate any apparent conflict or source of dispute.
OTHER SUBSTANTIVE ISSUES
According to the State
Land Office this bill would, “…transform the sometimes adversarial relationship
between the attorney general and client agencies into a normal attorney-client
relationship, giving the client express statutory authority to manage and
compromise their own lawsuits. This
would be consistent with the commissioner’s constitutional jurisdiction over
state public lands, also known as state trust lands, and his responsibility to
optimize revenues from these lands in accordance with the New Mexico enabling
act and state constitution.”
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