Alaska extends comment on proposed rule requiring attorney general's OK before agencies sue

The Alaska Department of Law has extended public comment to Oct. 21 on a proposed rule that would require executive-branch agencies to get the attorney general's written approval to sue, settle, appeal or hire lawyers. A supplemental notice from Acting Attorney General Cori Mills, posted Monday, replaced the original Sept. 29 deadline. The draft text has not changed since August.

Agencies would also need written approval to waive sovereign immunity, indemnify a third party or agree in a contract to another state's law or courts. They would need approval to contract for outside lawyers "regardless of the source of funds" and, unless a statute expressly allows it or the agency signs a memorandum of understanding with the attorney general, to hire staff attorneys.

Agency and contract lawyers would defer to the attorney general on the state constitution, the Open Meetings Act, the Public Records Act and "the governance of state boards and commissions," among other laws. The Public Defender Agency, the Office of Public Advocacy and the Office of Administrative Hearings are exempt from that requirement.

The rule excludes the Alaska Railroad Corporation, the University of Alaska and the Alaska Bar Association.

In its written answers to questions, the department said the rules came at the governor's direction in Administrative Order 362. Gov. Mike Dunleavy's order, dated Jan. 19, followed a WilmerHale review of former Revenue Commissioner Adam Crum's commitment of up to $75 million from the Constitutional Budget Reserve Fund subaccount to a DigitalBridge private equity investment. One of the review's recommendations was a regulation making procurement rules apply to outside lawyers even when the state might not pay the fees.

The order applies to state agencies "with respect to engaging outside legal counsel" and does not mention lawsuits, settlements, appeals or staff attorneys. "The regulations are merely clarifying this statute," the department wrote, citing the law making the attorney general the "legal advisor of the governor and other state officers" and the state's representative in civil cases.

The department also said "This regulation concerns the advice provided by attorneys, and does not purport to govern the decisions made by agencies."

Comments are due by 5 pm Oct. 21 and can be submitted through the online notice.