RE: POSSIBLE NEGOTIATIONS BETWEEN OKLAHOMA DEPARTMENT OF CORRECTIONS AND THE SAC AND FOX NATION
ATTORNEY GENERAL HENRY HAS ASKED ME TO RESPOND TO YOUR RECENT LETTER REQUESTING AN OPINION FROM THIS OFFICE PERTAINING TO A PROPOSAL BY THE SAC AND FOX NATION TO CONSTRUCT A MEDIUM SECURITY PRISON AND LEASE IT TO THE STATE OF OKLAHOMA. YOU HAVE ATTACHED TO YOUR LETTER A FACT AND QUESTION SHEETS THAT APPARENTLY WAS FURNISHED TO YOU BY REPRESENTATIVES OF THE SAC AND FOX NATION. THE ATTACHMENT POSES A NUMBER OF QUESTIONS OF INTEREST TO THE SAC AND FOX NATION WHICH APPEAR RELEVANT TO THE ACTUAL DESIGN OF THE PROPOSAL THE NATION PLANS TO MAKE TO THE STATE. FOR SEVERAL REASONS WE BELIEVE AN OFFICIAL OPINION OF THE ATTORNEY GENERAL IS NOT THE APPROPRIATE VEHICLE FOR THE DISCUSSION OF THESE PARTICULAR QUESTIONS. THAT DOES NOT MEAN, HOWEVER, THAT THIS OFFICE CANNOT BE OF SOME ASSISTANCE, PERHAPS EVEN SUBSTANTIAL ASSISTANCE, TO THE STATE OF OKLAHOMA SHOULD NEGOTIATIONS FOR SUCH A CONTRACT BE COMMENCED.
THE FACT AND QUESTION SHEET SUBMITTED BY YOU REFLECTS SOME AREAS IN WHICH THE RESPONSE TO A QUESTION POSED MAY BE AS MUCH A MATTER OF STATE POLICY AS IT IS A MATTER OF LAW. WHILE THE PROPOSED CONTRACT CAN BE EXPECTED TO REFLECT THESE POLICY DECISIONS, THIS OFFICE IS NOT IN A POSITION TO ANTICIPATE WHAT THE STATE'S POLICY MAY BE. IT IS AS YET UNKNOWN IN WHAT CONTEXT AND ON WHICH AGENCY'S OR STATE OFFICIAL'S BEHALF, INCLUDING THE GOVERNOR'S AND/OR THE DEPARTMENT OF CORRECTIONS, NEGOTIATIONS FOR A PRIVATE PRISON PROJECT MIGHT ARISE. FOR INSTANCE, IF THEY ARE UNDERTAKEN PURSUANT TO 74 O.S. 1221 AND 74 O.S. 1222 (1989), THE STATUTES PERTAINING TO STATE-TRIBAL AGREEMENTS, THE NEGOTIATIONS WOULD BE UNDERTAKEN BY THE GOVERNOR OR HIS DESIGNEE(S). BUT IN ANY EVENT, IT WILL BE THE NEGOTIATING AGENCY, AND NOT THIS OFFICE, WHICH WILL DETERMINE THE STATE'S PREFERENCE OR POSITION ON ANY PARTICULAR POLICY MATTER.
ADDITIONALLY, ANY SUCH NEGOTIATIONS WOULD, OF COURSE, BE BILATERAL AND WHILE NOT NECESSARILY ADVERSARIAL IN NATURE, WOULD INVOLVE EACH OF THE TWO INTERESTED PARTIES ATTEMPTING TO OBTAIN THE MOST ADVANTAGEOUS CONTRACT TERMS AVAILABLE. IT WOULD BE MOST UNUSUAL, AND PROBABLY A BREACH OF OUR ETHICAL AND STATUTORY DUTIES TO OUR CLIENT, THE STATE, TO PROVIDE ADVICE ON LEGAL MATTERS RELATING TO THE POSITION OF THE STATE WITHOUT FIRST CONSULTING WITH THE APPROPRIATE AGENCY AS TO THE LEGAL ISSUES INVOLVED. NEVERTHELESS, THAT IS PRECISELY THE POSITION WE WOULD BE PUT IN SHOULD WE ADDRESS SOME OF THE QUESTIONS POSED IN THE SHEET YOU PROVIDED US.
FINALLY, SOME OF THE ISSUES YOU RAISED CANNOT BE RESOLVED WITHOUT EXAMINING THE ACTUAL TERMS OF A PROPOSED CONTRACT.
AS ALL OF THE FOREGOING DEMONSTRATES, AN ATTORNEY GENERAL OPINION, WRITTEN IN A FACTUAL VACUUM, IS GENERALLY NOT THE BEST WAY TO ADDRESS CONCERNS RELATING TO ACTUAL OR ANTICIPATED CONTRACT NEGOTIATIONS. THIS IS ESPECIALLY TRUE WHEN THE SPECIFIC DESIGN OF THE PROJECT INVOLVED IS STILL UNKNOWN. RATHER, THE KINDS OF ISSUES YOU RAISE ARE MOST