Monday, November 16, 2009

Weekly Opinion/Editorial
by Steve Fair
In this year’s legislative session, Senator Anthony Sykes, (R-Moore) and Representative Mark McCullough, (R-Sapulpa) authored a bill known as the “Private Attorney Retention Sunshine Act.” House Bill 2167 would have required Oklahoma governmental agencies to issue and publicly post a “Request for Proposals” for legal services and then publicly list all attorneys and law firms that are awarded contracts. McCullough and Sykes were attempting to stop what the Wall Street Journal called in a May 23rd editorial a “pay to sue” racket. They simply wanted the state to competitively bid the outside legal counsel the state uses. The current system allows the Attorney General to hire outside law firms and retain private lawyers on a contingency basis without a competitive bid.

The bill passed the Senate unanimously with overwhelming bipartisan support. It passed the State House 57-39 and was sent to the Governor, but Henry vetoed it saying, “While HB 2167 is well intended and has many good provisions, the legislation potentially does more harm than good because of its unintended consequences. Many state agencies could easily comply with the contracting restrictions in question, but for those agencies, such as Oklahoma Department of Transportation, that must respond quickly to a lawsuit or that must execute a large volume of legal contracts by virtue of their statutory responsibilities, such mandates would impair their ability to respond to pressing legal issues or to timely complete crucial projects, causing undue delays, increasing costs to the state and causing them to miss court-imposed deadlines. The Legislature should consider legislation that recognizes the unique statutory responsibilities of such adversely-impacted agencies.” Because it was such a close vote in the House, it was not likely the veto could have been overturned, but Sykes has vowed to file a similar bill in the next session.
There are several problems with Henry’s reason for his veto; First, the Oklahoma Department of Transportation has multiple attorneys on their staff? Shouldn’t their internal counsel be handling these “emergencies” that arise? Isn’t that why ODOT and the taxpayer employ them?

Secondly, the Private Attorney Retention Sunshine Act is model legislation developed by the American Legislative Exchange Council, and has been passed in Texas, North Dakota, Colorado, Kansas and Virginia. Several other states are considering the same legislation. That means three of our bordering states have enacted this policy to provide more transparency in government. If Oklahoma continues to lag behind the region in dealing with tort reform, we can expect to lose more doctors and health care professionals to states that have enacted true tort reform.

And finally, there is a fundamental moral problem with the practice itself. The head of a government agency should not be able to hire his friends or supporters with taxpayer money without a competitive bid and then solicit campaign contributions from those same friends and supporters. That is a clear conflict of interest and invites corruption.

According to the May 2009 WSJ editorial, “Mr. Edmondson was one of the first AGs to jump into the 1990s tobacco litigation. He gave work to two non-Oklahoma giants of tobacco torts, Motley Rice and Scruggs Millette. Also receiving contracts were three Oklahoma firms, including Riggs Abney -- home to Mr. Edmondson's friend and political ally, another former AG named Mike Turpen. As their part of the tobacco settlement, the firms would ultimately reap $250 million in legal fees. Mr. Turpen's firm collected $30 million.”

Edmondson just announced he is the first candidate for Governor to raise one million dollars in his campaign. A large majority of his contributions came from trial attorneys, many who also just happen to be on retainer by the state as outside counsel.

If the current hiring “outside counsel” process isn’t corrupt, then what’s wrong with opening it up by competitively bidding the process? After all, it is taxpayer money and we have a right to know how our money is being spent. If we are getting a good deal, then why wouldn’t the firms that are getting the business be eager to bid? This ‘good ole boy’ practice and the fact it was not widely known to the average Oklahoman just reinforces that Oklahoma has a long way before we have true transparency in government.
Edmondson has a great Oklahoma political name. His father served in Congress and his uncle, J. Howard, was the youngest governor in Oklahoma history, just thirty three years old when he was elected in 1958. Drew has certainly won his share of statewide elections (three), but his resistance to tort reform makes him a poor choice to lead Oklahoma. Henry’s two terms have shown he doesn’t favor meaningful tort reform- an issue which impacts Oklahoma negatively. Edmondson would be more of the same and Oklahoma can ill afford to hold to a flawed philosophy of continuing to cater to trial attorneys in our state.

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