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COMMENT DUE DATE:  

May 14, 2012

DATE: 

May 3, 2012

Richard Freeman Legal Division (405)522-3528

Dena Thayer OIRP Programs Administrator (405)521-4326

RE:  

Non-APA WF 12-D

It is very important that you provide your comments regarding the DRAFT COPY of policy by the comment due date. Comments are directed to *STO.LegalServices.Policy@okdhs.org

The proposed policy is  Non-APA .  This proposal is not subject to the Administrative Procedures Act

The proposed effective date is May 15, 2012.

OKDHS:2 ADMINISTRATIVE COMPONENTS

Subchapter 25. Office of General Counsel

OKDHS:2-25-8 [AMENDED]

SUMMARY:

OKDHS:2-25-8 is amended to:(1) more accurately describe Legal Division representation; (2) delete obsolete language; (3) update statutory citations; (4) reflect current practices; (5) allow a more streamlined process to settle lawsuits; and (6) change references from "Legal Unit" to "Legal Division" throughout.

SUBCHAPTER 25. OFFICE OF GENERAL COUNSEL

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

Issued 4-12-94 Revised 05-15-12

(a) Representation of OKDHS.Where DHS, or the institutions within its control When OKDHS is a named defendant or the real party in interest in an action, the Legal Unit shall provide Division provides representation in such action.

(1) Liaison.Each division and/or institution shall be responsible for designating an individual as a legal liaison to operate as a contact person for the Legal Unit to assist in the gathering of documents, identification and procurement of witnesses and general preparation for the defense of the action.In addition, the liaison shall be available as a client representative in depositions, hearings or trial and shall be responsible for ensuring communication of information to the Division Administrator.The liaison should have a working knowledge of the program involved, applicable policy, the operation of the division and access to relevant data.The liaison shall keep all communications regarding pending litigation confidential absent attorney approval to reveal information.The person designated as liaison may vary from case to case at the discretion of the Division Administrator.

(2) Communications.All written communications between the liaison and the Legal Unit regarding pending or anticipated litigation shall be marked "Attorney-Client Privilege/Attorney Work Product."

(b) Representation of employees.

(1) Introduction.Any OKDHS employee of the Department of Human Services, 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 the Department OKDHS or its employees, shall immediately, provide provides the Legal Unit Division with all documents received.(See OAC 340:2-25-11 for procedures relating to subpoenas or notices of depositions).

(A) Time.Time is extremely important and vital in court proceedings.Where When an employee is a named defendant in the proceeding and where the employee desires legal representation by the Legal Unit, he/she must make Division, the employee makes a request for representation no later than ten days after receipt of summons.Such a request is made on Form LD-1 13LE002E, Employee Request for Legal Representation, and directed to the General Counsel general counsel for approval.In any legal proceeding where when an employee is named as a party, the employee may arrange for private counsel at the employee's own expense.However, the Department shall not be OKDHS is not obligated to reimburse the employee for the expense of such representation.

(B) Determination.Prior to the filing of a responsive pleading, the General Counsel general counsel shall determine pursuant to 51 O.S. 1991 and Supp. 1993, '162(A) as amended; 74 O.S. 1991 and Supp. 1993, '20f 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, whether the Legal Unit Division can provide representation to an employee.Whenever When an employee is sued in his/her the employee's individual capacity, the Legal Unit shall provide Division provides representation pursuant to per 74 O.S. 1991 and Supp. 1993, ' §20f(A), as amended, where when the preliminary investigation determines that:

(i) The the employee's act or omission which that forms the basis of the legal action brought against the employee was done or omitted in the course of his/her his or her employment;

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

(iii) There exists there is no conflict of interest between the employee and another named defendant being represented by the Legal Unit Division.

(2) Procedures for determination of representation.Upon the timely receipt of an LD-1, Request for Legal Representation Form 13LE002E, the General Counsel, general counsel shall initiate initiates an investigation of the facts surrounding the lawsuit on behalf of OKDHS in order to make a preliminary determination of whether the requirements for representation have been are met.The preliminary investigation must be concluded prior to the date of any responsive pleading.Upon completion of the preliminary investigation, the findings will be are presented to the General Counsel general counsel for the purpose of making a preliminary determination regarding representation.The attorney assigned to the case shall notify notifies the employee of the General Counsel's general counsel's determination and if representation is undertaken, obtain an agreement for representation signed by the employee and the General Counsel.

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

(B) Denial of representation.Where When it is determined that the employee acted outside the course of his/her his or her employment and/or the employee's actions acts or inactions omissions were made done in bad faith, the OKDHS Director and employee will be are informed that the Legal Unit Division cannot represent the employee and a recommendation will be is made to the employee that he/she he or she engage private counsel at his/her his or her own expense.The Department of Human Services shall not be OKDHS is not obligated to reimburse the employee for the expense of such private counsel.

(3) Defense of actions.The Legal Unit will determine Division 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 the Legal Unit Division 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.All employees Employees have a duty by virtue of their OKDHS employment with DHS to provide any all information to the Legal Unit which Division that is reasonably necessary for the investigation, prosecution, or defense of any actual or anticipated legal action involving OKDHS.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 shall does the Legal Unit Division represent an employee in any a criminal or grand jury proceeding.

(7) Attorney contact with OKDHS employees.Contacts by private attorneys outside of those which might that may routinely occasion occur in connection with normal job functions should be are referred to the Legal Unit Division.Whenever When an employee is contacted by a private attorneys attorney regarding pending litigation, the employee shall refer refers the lawyer attorney to the Legal Unit Division prior to providing any information.

(e)(c) Representation of former employees.The Legal Unit Division may represent former OKDHS employees in lawsuits provided that the action is based on the individual's conduct while an OKDHS employee of DHS and that the former employee meets all other representation requirements of representation.All procedures Procedures set forth in this Section for representation of current OKDHS employees of the Department of Human Services shall also apply to representation of former employees.

(f)(d) Representation in the event of a conflict of interest. Where When a lawsuit names both OKDHS and an OKDHS employee of DHS and where there exists a conflict of interest, the Legal Unit shall represent the Agency Division represents OKDHS.It is the responsibility of the Legal Unit Division to inform appropriate OKDHS administrators of any information gathered as a result of its investigations or defense of legal actions which has or could have that had, has, or could have an adverse impact on the operation OKDHS operations or programs of the Department.Information regarding inappropriate employee conduct, including violations of law or policy, may be reported to appropriate administrators.

(g)(e) Procedures for Settlement settlement of claims and lawsuits.In addition to any approval required by any applicable state or federal statute, rule, or regulation, the settlement procedures set out in (1) - (3) of this subsection shall be are followed.

(1) Claims and lawsuits under the Governmental Tort Claims Act Money damage settlements.When a claim or lawsuit against the Agency or its employees is settled under the Governmental Tort Claims Act, as amended, 51 O.S. 1991 and Supp. 1993, ''151-172, Agency approval shall be made as follows:

(A) Settlements of $5,000.00 or less shall be approved by the General Counsel with the concurrence of the Agency component involved;

(B) Settlements between $5,000.00 and $25,000.00 shall be approved by the Director and the General Counsel with the concurrence of the Agency component involved; and,

(C) Settlements of $25,000.00 or more shall be approved by the Commission, the Director and the General Counsel with the concurrence of the Agency component involved.Settlements of claims or lawsuits seeking money damages brought by or against OKDHS or its employees are approved by the OKDHS Director or designee.

(2) Claims and lawsuits seeking declaratory, injunctive or other equitable relief Declaratory, injunctive, or other equitable relief settlements.When a claim or lawsuit seeking declaratory, injunctive or other equitable relief against the Agency or its employees is settled, Agency approval shall be made as follows:

(A) Settlements shall be approved by the General Counsel with the concurrence of the Agency component involved when in the opinion of the General Counsel the requested relief will not have a substantial financial impact on the Agency and will not significantly affect the manner of operation of the Agency or any of its programs.

(B) Settlements shall be approved by the Director and the General Counsel with the concurrence of the Agency component involved when in the opinion of the General Counsel the requested relief will have a substantial financial impact on the Agency or will significantly affect the manner of operation of the Agency or any of its programs.

(C) Settlements shall be approved by the Commission, the Director and the General Counsel with the concurrence of the Agency component involved when in the opinion of the General Counsel the requested relief will have a substantial financial impact on the Agency, will significantly affect the manner of operation of the Agency or any of its programs, and will require a change in Agency policy.Settlements of claims or lawsuits seeking declaratory, injunctive, or other equitable relief brought by or against OKDHS or its employees are approved by the OKDHS Director or the Director's designee.

(3) Claims and lawsuits brought by the Agency Settlement conference, mediation session, or other method of alternative dispute resolution.When a claim or lawsuit brought by the Agency seeking money damages or declaratory, injunctive or other equitable relief is settled, Agency approval shall be made as follows:

(A) Settlements shall be approved by the General Counsel with the concurrence of the Agency component involved when the amount sued for is $50,000.00 or less, or when in the opinion of the General Counsel the requested relief will not have a substantial financial impact on the Agency and will not significantly affect the manner of operation of the Agency or any of its programs.

(B) Settlements shall be approved by the Director and the General Counsel with the concurrence of the Agency component involved when the amount sued for is between $50,000.00 and $100,000.00, or when in the opinion of the General Counsel the requested relief will have a substantial financial impact on the Agency or will significantly affect the manner of operation of the Agency or any of its programs.

(C) Settlements shall be approved by the Commission, the Director and the General Counsel with the concurrence of the Agency component involved when the amount sued for exceeds $100,000.00, or when in the opinion of the General Counsel the requested relief will have a substantial financial impact on the Agency, will significantly affect the manner of operation of the Agency or any of its programs, and will require a change in Agency policy.For the purpose of a settlement conference, mediation session, or other method of alternative dispute resolution conducted in any lawsuit in state or federal court, or in any administrative proceeding brought by or against OKDHS or its employees, the OKDHS Director may designate an appropriate representative to attend with full settlement authority.

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