The Tulsa County Jail. DYLAN GOFORTH/The Frontier

The Oklahoma Department of Corrections hired an outside legal firm to represent it in a multi-million dollar lawsuit brought against the agency by Tulsa County after the Oklahoma Attorney General’s Office withdrew from the case.

The withdrawal came following an Attorney General opinion that conflicted with the DOC’s position on jail payments.

The Department of Corrections, Board of Corrections and DOC Director Joe Allbaugh were originally represented by the Oklahoma Attorney General’s Office in the $10 million suit filed in March 2017 by Tulsa County and the Tulsa County Criminal Justice Authority. The lawsuit seeks what Tulsa County says is the unpaid cost of holding state prisoners in the Tulsa County Jail.

However, the Attorney General’s Office asked to withdraw as counsel for the defendants in late 2017, a request that was granted by an Oklahoma County judge on Feb. 2.

The department, board and Allbaugh are now represented in the case by the Tulsa law firm GableGotwals.

According to public documents filed by DOC to obtain representation by the firm, “DOC was advised that the Attorney General’s office had a conflict of interest in this case (wherein it had been providing representation) in light of an opinion, issued by the Attorney General which conflicted with the position of DOC. In light of said opinion, the Attorney General’s office is unable to represent the position of DOC and the named defendants as it would likely require the Attorney General’s office to argue a position in conflict with said opinion by the Attorney General.”

The DOC’s application for private counsel indicates the cost to the agency could be more than $20,000 should the case go to trial. DOC spokesman Matt Elliott said the department does not comment on pending litigation.

The Attorney General opinion in question, issued in May 2017, states that the “three day rule” — which required county jails to send sentencing paperwork to DOC within three days of an inmate being sentenced to prison — was unconstitutional. If the paperwork was not sent within three days, the county would bear the cost of housing the now-state prisoner — a violation of the Oklahoma Constitution’s requirement that only the state may bear the cost of state prisoners, the opinion states.

The opinion also cites a 2015 case brought against DOC by Bryan County, in which the Oklahoma Court of Criminal Appeals ruled that county support of a state penal institution is unconstitutional. In its response to the lawsuit prior to withdrawing, the Attorney General’s Office said it did not intend to challenge the appeals court ruling in that case.

Part of Tulsa County’s amended lawsuit against the department, filed in January, includes costs that were not paid to the county by DOC under the three-day rule. The county had also had a study performed by an outside consulting firm that found the cost of housing an inmate sentenced to prison was, on average, $55.81 per day — double the $27 per day paid by the state, though the Attorney General’s Office argued in court filings that counties cannot set their own reimbursement rate for prisoners. The amended petition asks for more than $11 million in unpaid costs.

Assistant Tulsa County District Attorney Douglas Wilson, who is representing Tulsa County and the Criminal Justice Authority in the case, said the withdrawal of the Attorney General’s Office from representing a state agency in such a case is rare.

“I can’t recall ever seeing it, and I’m going on 30 years (as an attorney),” Wilson said.

Tulsa County’s lawsuit also cites a previous Attorney General opinions, such as one in 2011 that held the state must pay costs in excess of the $27 per day requirement to house prisoners if the actual cost to a jail exceeds the $27.

“The state of Oklahoma pays for prisons and it can’t cheat and reach into the pockets of counties to try and make some of the payments,” Wilson said. “There have been a number of different ways the state has tried to do that, but the Supreme Court has always rejected them, relying on this constitutional provision.”

The county’s amended petition, Wilson said, explicitly names the state of Oklahoma as a defendant in the lawsuit in addition to the department, board and director of the corrections department.

“In the end, I don’t care which agency pays the bill,” Wilson said, “the state of Oklahoma has to pay it, not the counties.”

Though DOC, the Board of Corrections and Allbaugh are now represented by a private firm, court filings show the State of Oklahoma, which is also a defendant in the suit, now has no attorney of record in the case after the withdrawal of the Attorney General’s Office.

A spokesman for the Attorney General’s Office said Tuesday that the AG’s office has no plans on re-entering the case.