Library: Policy

DHS:2-25-8. Representation of the Oklahoma Department of Human Services (DHS) and DHS employees in legal and administrative proceedings

Revised 6-24-19

(a) DHS representation.When DHS is a real party in interest to any action, including as a named defendant DHS Legal Services (LS) provides representation.

(b) Representation of DHS employees.

(1) Introduction.Any DHS employee upon being served with a summons, petition, complaint, or other legal notice, except a subpoena or notice of deposition, of any legal or administrative proceeding involving DHS or its employees, must immediately provide LS with all of the documents received.

(A) Time.When an employee is a named defendant in the proceeding and the employee desires legal representation by LS, the employee makes a request for representation no later than 10-calendar days after receipt of summons.The request is made on Form 13LE002E, Employee Request for Legal Representation, and is directed to LS General Counsel for approval.In any legal proceeding when an employee is named as a party, the employee may arrange for private counsel at his or her personal expense and DHS is not obligated to reimburse him or her for the expense of such representation.

(B) Determination.Prior to the filing of a responsive pleading, LS General Counsel determines, per Section 162(A) of Title 51 of the Oklahoma Statutes (51 O.S. § 162(A)), 74 O.S. § 20f, and (i) - (iii) of this subparagraph, if LS can provide representation to the employee.When an employee is sued in an individual capacity, LS provides representation, per 74 O.S. § 20f(A), when the preliminary investigation determines that:

(i) the employee's act or omission forming the basis of the legal action brought against the employee was done or omitted in the course of employment;

(ii) the employee's actions or inactions were made in good faith; and

(iii) there is no conflict of interest between the employee and another-named defendant represented by LS.

(2) Procedures for representation determination.Upon the timely receipt of Form 13LE002E, LS General Counsel initiates an investigation of the facts surrounding the lawsuit on behalf of DHS in order to make a preliminary determination of whether the requirements for representation are met.The preliminary investigation must conclude prior to the date of any responsive pleading.Upon completion of the preliminary investigation, the findings are presented to LS General Counsel or the Litigation Section Chief for the purpose of making a preliminary determination regarding representation.The attorney assigned to the case notifies the employee of the preliminary investigation's determination.

(A) Conflict of interest.When it is determined that a conflict of interest exists, but the employee was acting in the course of his or her employment and in good faith, a request for representation may be made by LS General Counsel or the Litigation Section Chief to the Attorney General's Office.

(B) Denial of representation.When it is determined the employee acted outside of the course of his or her employment and/or the employee's acts or omissions were done in bad faith, the DHS Director and employee are informed representation of the employee cannot occur.A recommendation is then made to the employee, recommending he or she engage private counsel at his or her own expense.

(3) Defense of actions.DHS LS determines the method of preparation and presentation of any defense or prosecution of an action available to its clients.

(4) Employee duty to assist in defense.An employee represented by DHS LS has a good faith obligation to provide assistance in the preparation, prosecution, or defense of a claim.Failure to provide such assistance may result in termination of representation and possible increased exposure to personal liability.

(5) Employee duty to provide information.Employees have a duty by virtue of their DHS employment to provide all information to DHS LS that is reasonably necessary for the investigation, prosecution, or defense of any actual or anticipated legal action involving DHS.Employees who are witnesses in a legal action have a continuing duty to provide information and be available to testify in legal proceedings.

(6) Criminal and grand jury proceedings.In no event does DHS LS represent an employee in a criminal or grand jury proceeding.

(7) Attorney contact with DHS employees.Contacts by private attorneys outside of those that may routinely occur in connection with normal job functions are referred to DHS LS.When an employee is contacted by a private attorney regarding pending litigation, the employee refers the attorney to DHS LS without providing any information.

(c) Representation of former employees.DHS LS may represent former DHS employees in lawsuits provided the action is based on the individual's conduct while a DHS employee and he or she meets all other representation requirements.Procedures set forth in this Section for representation of current DHS employees also apply to representation of former employees.

(d) Representation in the event of a conflict of interest. When a lawsuit names both DHS and a DHS employee and it is determined by DHS LS a conflict of interest exists, DHS LS represents DHS.

(e) Duty to inform. It is the responsibility of DHS LS to inform appropriate DHS administrators of any information gathered as a result of its investigations or defense of legal actions that had, has, or could have an adverse impact on DHS operations or programs.Information regarding inappropriate employee conduct, including violations of law or rules or regulations, may be reported to appropriate administrators.

(e) Procedures for settlement of claims and lawsuits.In addition to any approval required by any applicable federal or state statute, rule, or regulation the settlement procedures set out in this subsection are followed.

(1) Money damage settlements.Settlements of claims or lawsuits seeking money damages brought by or against DHS or its employees are approved by the DHS Director or his or her designee.

(2) Declaratory, injunctive, or other equitable relief settlements.Settlements of claims or lawsuits seeking declaratory, injunctive, or other equitable relief brought by or against DHS or its employees are approved by the DHS Director or his or her designee.

(3) Settlement conference, mediation session, or other method of alternative dispute resolution.For the purpose of a settlement conference, mediation session, or other method of alternative dispute resolution conducted in any lawsuit in federal or state court, or in any administrative proceeding brought by or against DHS or its employees, the DHS Director may designate an appropriate representative to attend with full-settlement authority.