North Carolina § 114-2 - 3. Use of private counsel limited.

§ 114-2. 3. Use of private counsel limited.

Every agency, institution, department, bureau, board, or commission of the State, authorized by law to retain private counsel, shall obtain written permission from the Attorney General prior to employing private counsel. This section does not apply to counties, cities, towns, other municipal corporations or political subdivisions of the State, or any agencies of these municipal corporations or political subdivisions, or to county or city boards of education. Article 2A of this Chapter applies to any contract to retain private counsel authorized by the Attorney General under this section. Except as provided in G.S. 147-17, the Attorney General shall represent the State in any action requiring the State to be a party under G.S. 1-72.3. No State funds shall be withdrawn from the State treasury to pay for litigation services provided by private counsel except as expressly authorized by an appropriation of the General Assembly. As used in this subsection, litigation services include legal work conducted in anticipation of, or in preparation for, any suit or action. As used in this section, private counsel includes any licensed attorney retained by, engaged by, or otherwise representing a department, officer, agency, institution, commission, bureau, or other organized activity of the State but does not include a licensed attorney who holds a permanent budgeted position in either the Department of Justice or the applicable department, officer, agency, institution, commission, bureau, or other organized activity of the State. History (1985, c. 479, s. 135; 2014-110, s. 1.2; 2016-109, s. 2(b); 2017-57, s. 6.7(b).) Outside Legal Counsel/Department of Transportation. - Session Laws 2013-360, s. 7.17(f), provides: "Expert Counsel Required. - Notwithstanding G.S. 114-2.3, the Department of Revenue shall engage the services of private counsel with the pertinent information technology and computer law expertise to negotiate and review contracts associated with an additional public-private arrangement authorized under this section." Session Laws 2013-360, s. 34.27, as amended by Session Laws 2014-100, s. 34.24(a), provides: "The Department of Transportation may engage the services of private counsel with the pertinent expertise to provide legal services related to transportation projects undertaken by the Department. The Department shall supervise and manage the private counsel engaged under this section and shall not be required to obtain written permission or approval from the Attorney General under G.S. 114-2.3." Session Laws 2015-241, s. 29.8(a) effective July 1, 2015, repealed Session Laws 2013-360, s. 34.27, as amended by Session Laws 2014-100, s. 34.24(a). Medicaid Management Information System (MMIS). - Session Laws 2009-451, s. 10.41(c), provides: "(c) Notwithstanding G.S. 114-2.3, the Department shall engage the services of private counsel with the pertinent information technology and computer law expertise to review requests for proposals and to negotiate and review contracts associated with MMIS. The counsel engaged by the Department shall review the MMIS contract between the Department and the vendor to ensure that the requirements of subsection (a) of this section are met in their entirety." For similar prior provisions, see Session Laws 2007-323, s. 10.40D(a) and (b), as amended by Session Laws 2008-107, 10.9(a). Session Laws 2011-145, s. 10.29(f), provides: "Notwithstanding G.S. 114-2.3, the Department shall engage the services of private counsel with pertinent information technology and computer law expertise to review requests for proposals and to negotiate and review contracts associated with the replacement MMIS [Medicaid Management Information System]. This shall include amendments exceeding ten million dollars ($10,000,000). The counsel engaged by the Department shall review the replacement MMIS [Medicaid Management Information System] contracts and amendments between the Department and the vendor to ensure that the requirements of subsection (d) of this section are met in their entirety and that the terms of the contract are in the State's best interest." Session Laws 2013-360, s. 12A.4(e), provides: "Notwithstanding G.S. 114-2.3, the Department shall consult with the Office of the SCIO concerning the retention of private counsel for the replacement MMIS, and as directed by the Office of the SCIO, retain private counsel with expertise in pertinent information technology and computer law to negotiate and review contract amendments associated with the replacement MMIS. The private counsel engaged by the Department shall review the replacement MMIS contract amendments between the Department and the vendors to ensure that the requirements of subsection (c) of this section are met in their entirety and that the terms of the contract amendments are in the State's best interest." Editor's Note. - Session Laws 2007-323, s. 6.9(b), as amended by Session Laws 2008-107, s. 23.1, provides: "(b) The General Assembly finds that a computer system that records tax payments and determines when the payments are overdue directly and primarily relates to the collection of overdue tax debts and that the proceeds of the collection assistance fee imposed by G.S. 105-243.1 may be applied to the cost of the computer system. The Department of Revenue is authorized to use funds in the 20% Collection Assistance Fee Account, Budget Code 24704-2474, during the 2007-2008 and 2008-2009 fiscal years to replace the Department's current computer system, and these funds are appropriated to the Department for that purpose. For fiscal year 2007-2008, the Department shall not use more than fifteen million dollars ($15,000,000) from the Account to replace the Department's current computer system. For fiscal year 2008-2009, the Department shall not use more than twenty-five million dollars ($25,000,000) from the Account to replace the Department's current computer system. "Funds appropriated under this subsection may be transferred to Budget Code 24708-2478 to be applied to expenditures for a replacement computer system. Funds appropriated under this subsection that are not transferred to Budget Code 24708-2478 remain in the Account until they are transferred to that Budget Code or withdrawn for expenditures for a replacement computer system. Funds appropriated under this subsection that are not expended at the end of the 2007-2009 biennium remain available for expenditure for the purpose designated in this subsection." Session Laws 2007-323, s. 6.9 (c), provides: "(c) The Department of Revenue shall contract with private counsel with the pertinent information technology and computer law expertise to review requests for proposals and to negotiate and review contracts associated with the Integrated Tax Administration System. G.S. 114-2.3 does not apply to this subsection." Session Laws 2007-323, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2007'." Session Laws 2007-323, s. 32.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2007-2009 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2007-2009 fiscal biennium." Session Laws 2007-323, s. 32.5, is a severability clause. Session Laws 2009-451, s. 6.20(b), provides: "Notwithstanding G.S. 114-2.3, the Department of Revenue shall engage the services of private counsel with the pertinent information technology and computer law expertise to review requests for proposals, and to negotiate and review contracts associated with TIMS and the additional components of the Planning and Design Project (PDP)(Enterprise Data Warehouse, Management Reporting and Decision Analytics, Customer Relationship Management, Enterprise Case Management, and E-Services)." Session Laws 2009-451, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2009'." Session Laws 2009-451, s. 28.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2009-2011 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2009-2011 fiscal biennium." Session Laws 2009-451, s. 28.5, is a severability clause. Session Laws 2011-145, s. 6A.5(b), provides: "Notwithstanding G.S. 114-2.3, the Department of Revenue shall engage the services of private counsel with the pertinent information technology and computer law expertise to review requests for proposals, and to negotiate and review contracts associated with TIMS and the additional components of the Planning and Design Project (PDP)(Enterprise Data Warehouse, Management Reporting and Decision Analytics, Customer Relationship Management, Enterprise Case Management, and E-Services)." Session Laws 2011-145, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2011.'" Session Laws 2011-145, s. 32.2, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2011-2013 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2011-2013 fiscal biennium." Session Laws 2011-145, s. 32.5, is a severability clause. Session Laws 2012-142, s. 6A.3(f), provides: "Expert Counsel Required. - Notwithstanding G.S. 114-2.3, the Department of Revenue shall engage the services of private counsel with the pertinent information technology and computer law expertise to negotiate and review contracts associated with an additional public-private arrangement authorized under this section." Session Laws 2012-142, s. 6A.12(i), provides: "Notwithstanding G.S. 114-2.3, the Office of the State CIO shall engage the services of private counsel with the pertinent information technology and computer law expertise to negotiate and review contracts associated with the State portal." Session Laws 2012-142, s. 6A.12(a)-(h), pertaining to the implementation and operation of a statewide electronic portal, and the associated reporting requirements for the State Chief Information Officer, has been codified at G.S. 147-33.87 A. Session Laws 2012-142, s. 6A.12(j), repealed Session Laws 2011-145, s. 6A.10, as amended by Session Laws 2011-391, s. 12(b), which contained similar provisions regarding engaging the services of private counsel with the pertinent information technology and computer law expertise to negotiate and review contracts associated with the implementation of a state electronic portal. Session Laws 2012-142, s. 1.2, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2012.'" Session Laws 2012-142, s. 27.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2012-2013 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2012-2013 fiscal year." Session Laws 2012-142, s. 27.7, is a severability clause. Session Laws 2013-360, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2013.'" Session Laws 2013-360, s. 38.2, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2013-2015 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2013-2015 fiscal biennium." Session Laws 2013-360, s. 38.5, is a severability clause. Session Laws 2014-100, s. 34.24(b), provides: "It is the intent of the General Assembly that the Department of Transportation exercise the authority granted by subsection (a) of this section to maximize operational and project delivery benefits attributed to the avoidance or successful defense of litigation. To accomplish this intent, the Department is directed to increase its utilization of external counsel to no less than ten percent (10%) of new cases arising during the 2014-2015 fiscal year, increasing to no less than twenty percent (20%) of new cases arising during the 2015-2016 fiscal year." Session Laws 2015-241, s. 29.8(b) effective July 1, 2015, repealed Session Laws 2014-100, s. 34.24(b). Session Laws 2014-100, s. 34.24(c), provides: "The Department shall develop performance metrics to evaluate its utilization of in-house and outside counsel, to include the following: "(1) A summary of new matters opened by legal area. "(2) Case cycle times. "(3) Resolution of cases. "(4) A comparison of in-house costs to billable rates for external counsel. "(5) The process for procurement for legal services. "The Department shall report no later than January 1, 2015, and quarterly thereafter, to the Joint Legislative Transportation Oversight Committee and the Joint Legislative Justice and Public Safety Oversight Committee regarding the performance metrics set forth in this subsection." Session Laws 2015-241, s. 29.8(b) effective July 1, 2015, repealed Session Laws 2014-100, s. 34.24(c). Session Laws 2014-100, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2014.'" Session Laws 2014-100, s. 38.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2014-2015 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2014-2015 fiscal year." Session Laws 2014-100, s. 38.7, is a severability clause. Session Laws 2015-241, s. 27.9, provides: "Of the amount appropriated for the 2015-2016 fiscal year to the Department of Administration, the Department shall allocate the sum of fifty thousand dollars ($50,000) in nonrecurring funds for hiring private counsel for pending litigation to confirm the State's title to certain lands brought pursuant to the Department's authority under G.S. 146-2 . In the discretion of the Department, G.S. 114-2.3 and G.S. 147-17(a) through (c) shall not apply to the Department if the Department is engaged in litigation for which funding is provided in this section. The Secretary may retain private counsel to represent the Department to be paid with State funds appropriated in this section. If private counsel is to be so retained to represent the Department, the Secretary shall designate lead counsel who shall possess final decision-making authority with respect to the representation, counsel, or service for the Department. Other counsel for the Department shall, consistent with the Rules of Professional Conduct, cooperate with such designated lead counsel." Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.'" Session Laws 2015-241, s. 33.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2015-2017 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2015-2017 fiscal biennium." Session Laws 2015-241, s. 33.6, is a severability clause. Session Laws 2016-109, s. 2(c), made subsection (c) of this section, as added by Session Laws 2016-109, s. 2(b), applicable to actions filed on or after August 1, 2016. Session Laws 2017-57, s. 15.18(b), (c), provides: "(b) Notwithstanding G.S. 147-17 and G.S. 114-2.3, the North Carolina Industrial Commission is authorized to use the funds carried forward under subsection (a) of this section to employ and supervise private counsel. "(c) Notwithstanding G.S. 1-521, 147-17, and 114-2.3, of the funds appropriated to the North Carolina Industrial Commission in this act, the sum of three hundred thousand dollars ($300,000) for the 2017-2018 fiscal year may be used for private legal services, litigation-related expenses, and the defense of any member in his or her official capacity arising from S.L. 2016-125. The funds allocated in this section shall not revert." Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017.'" Session Laws 2017-57, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2017-2019 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2017-2019 fiscal biennium." Session Laws 2017-57, s. 39.6, is a severability clause. Effect of Amendments. - Session Laws 2014-110, s. 1.2, added subsection (b). See Editor's note for effective date and applicability. Session Laws 2016-109, s. 2(b), effective August 1, 2016, added subsection (c). See editor's note for applicability. Session Laws 2017-57, s. 6.7(b), effective July 1, 2017, added subsection (d).