CONFIDENTIAL October 12, 1988

to: Attorney General Dave Frohnmayer

Fm: Michael Francke

Re: comments on Contract Attorney Services

Thank you for providing the Department with the opportunity to voice our views on the legal services provided by our contract attorneys.

Scott McAlister is the AAG principally assigned to general agency matters. We have also used the services of Mike Houston, Josephine Hawthorne, Pete DeLuca, Gabriella Lang and others on more than one occasion for specific subjects within their expertise.

Scott is probably the senior corrections agency attorney in state service in this country. As a result, he has a depth of experience that would be very difficult to replace. He is valuable to this agency from that standpoint in evaluating policy both from a legal and practical perspective. His interaction with staff, many of whom he has worked with for over a decade, is very positive and contributes to our ability to operate this agency within the law.

These positive elements in our working relationship with Scott are offset to a major extent by the time requirements of his handling of litigation. Staff frequently find that he is out to court when we call for a quick reaction to a problem that requires a decision in a short time frame. Scott also is unavailable from time to time due to his participation in training exercises around the country. His wealth of expertise and ability to relate to institutional staff serve him well in this type of setting. However, his absence makes it difficult for us to get our job done.

Scott tends from time to time to shoot from the hip with his legal advice. For example, the Governor had asked for an agency position on private sector financing for prisons. Scott was advised of the Governor's interest and the short time frame and was asked for an analysis of Oregon law on this topic. Several days later he responded with a telephonic briefing that indicated a very shallow knowledge of the applicable principles. We found ourselves trying to look up constitutional provisions while he tried to recall them over the phone. He called back later and advised that a xerox copy of an A.G. opinion that contained all relevant law was being sent over. The opinion arrived and was not helpful. Our ability to respond authoritatively to the Governor was substantially impaired.

When Scott is unavailable, there does not seem to be anyone else who can handle our inquiries. A discussion with Bill Gary last year led to the assignment of another attorney to Scott and it was my impression that this lawyer would be more like a house counsel. He would not be in a heavy litigation schedule and he would be available to help out in our day to day needs for advice. This has not worked out. The attorney is either not available or staff won't refer calls to him or he is not up to speed on the issues. My few contacts with him have not bolstered my confidence in his ability. However, he is, new to corrections.

Bill Gary has been extremely cooperative and responsive to our need for attorney support on issues Scott is not versed with or when we really are in a crunch and Scott is unavailable, in this connection, Gabriella Lang, Mike Houston and Josephine Hawthorne have been very supportive and have helped us out tremendously.

I have some experience as a corrections general counsel both in house and out of the Attorney General's Office in New Mexico. It is my view that the agency house counsel cannot have a litigation caseload and effectively support the agency. Location of office may not be as critical. I believe being officed with the agency is preferable, but there is apparently a major political issue in Oregon on that point.

As a person with experience as an assistant and deputy attorney general, I may be more critical than other agency heads. He may have gotten sloppy during a time when there was less legal scrutiny placed on his work. However, I do know that we have recurring instances of telephone tag, lengthy response times and shallow responses and I believe it is linked to Scott's requirements for court work. In that connection, I have received very critical comments on his work by Judge Joseph. I believe this may be a function of the Judge wanting more staff work on routine appeals than we have time or money to provide. However, he has a low opinion of our attorney.

The Governor's Office does not have confidence in Scott. They perceive him as contentious and litigation prone rather than someone who can work things • out or is negotiation prone. I have seen some of this in Scott. I declined to take him to North Bend against the advice of the city administration there who wanted some legal help in our zoning application review. I just didn't feel Scott would be prepared or would present the demeanor that would sell with the local officials there. This is not a major dilemma but it does compound some of the issues that flow between us.

I would recommend that you consider taking Scott out of the loop on general legal advice to the agency. Let him handle litigation, where he is probably the best money can buy in terms of volume and experience. Assign someone to the agency who can be available to us on a routine basis and who has or can build up a store of corrections legal expertise. This type of person should be housed at corrections in order to facilitate our communication. However, this issue is less critical than having someone dedicated to the ongoing task of providing an agency with tremendous legal complications in all phases of its work with thorough and timely legal advice.

Thanks again for the opportunity to comment. If possible, I would like to discuss this situation with you and Bill at your convenience.

MF