This Department Order establishes the guidelines for requesting opinions from the Office of the Attorney General and requirements for compliance with summonses and subpoenas.

107.01    CONTACT WITH AND REQUESTS FOR GENERAL COUNSEL ASSISTANCE AND ATTORNEY GENERAL OPINIONS

1.1    All requests for assistance or options from the General Counsel' office must be approved by the Division Director. Division Directors shall notify the General Counsel when referring staff for assistance.

1.2    Only Division Directors or the General Counsel and their designees may request written opinions from the Arizona Office of the Attorney General. Others may consult informally with the Office of the Attorney General with the prior approval of their Division Director.

1.3    Except as provided in 1.2 of this section the General Counsel or designee shall coordinate all contact with the Office of the Attorney General by Department employees.

1.4    Employees shall not initiate informal contact with the Office of the Attorney General without the knowledge and/or involvement of the General Counsel or their Division Director.

1.5    The Department Chief Procurement Officer may contact the designated Assistant Attorney General for issues related to contracts and procurement.

1.6    Responses to the Attorney General for information - Employees shall respond to each communication requested by the Office of the Attorney General in a timely manner.

1.6.1    All requests for documents by the Office of the Attorney General shall be provided to Legal Services. No one shall provide personal identifying information for other persons such as addresses, telephone numbers or Social Security Numbers shall be provided without written approval of Legal Services.

1.6.2    Questions regarding any communication from the Office of the Attorney General shall be addressed to the General Counsel or designee.

107.02     RESPONSE TO SUMMONSES AND SUBPOENAS - Employees shall:

1.1    Accept service of a summons or subpoena only if it is addressed to or served on them.

1.2    Immediately advise Legal Services upon receipt of a summons or subpoena.

1.3    Give the highest possible priority to the handling of the summons or subpoena.

1.3.1    Noncompliance with a summons or subpoena may be considered contempt of court and shall be treated as misconduct by the Department.

1.3.2    If a summons is received in the mail while an employee is temporarily absent, Legal Services shall be notified immediately.

1.3.3    If a person is no longer employed by the Department, the documents shall be sent immediately to Legal Services with an explanation.

107.03     SUMMONSES RESULTING FROM COMPLAINTS/LAWSUITS FILED

1.1    Employees are free to retain their own counsel at their own expense. If this option is chosen, the employee shall notify Legal Services immediately, and the employee shall be responsible for the defense of the lawsuit through their attorney. Otherwise, all employees shall be represented in litigation by the Office of the Attorney General unless the Office of the Attorney General has a conflict of interest.

1.2    In the event of a conflict, the Attorney General will assist in retaining outside counsel for the employee. The State will not provide counsel to an employee who act or omission has been determined by a court to be a criminal felony or who is sued personally for an occurrence not within the course and scope of the employee's employment. The State will not represent an employee in a criminal matter. A.R.S. 12-820.05.

1.3    To prevent default or personal service process charges, an employee/defendant shall contact Legal Services immediately if they have any questions or require clarification of the service of process procedures.

1.3.1    An employee served with any habeas corpus pleadings shall immediately notify Legal Services.

1.4    All employees shall comply with the provisions of this Department Order, whether the lawsuit was served in person by a non-Department employee (typically a U.S. Marshal, County Sheriff or process server), or by U.S. Mail. Employees who are served with a work related lawsuit and who do not retain counsel at their own expense shall:

1.4.1    Indicate the date and time served.

1.4.2    Indicate whether the lawsuit was served in person or by U.S. Mail.

1.4.3    Contact Legal Services immediately.

1.4.4    Make a personal copy of the complaint and order received, and immediately forward all documents, unsigned and undated, including envelopes, to Legal Services.

1.4.5    Complete and sign the Authorization to Accept Service, Attachment A, authorizing the Arizona Attorney General to accept service on the employee’s behalf.

1.4.5.1    Any employee who elects not to sign the Authorization to Accept Service form (who does not elect to be represented in litigation by the Office of the Attorney General) shall contact Legal Services immediately.

1.5    Employees shall respond to issues raised in the lawsuit, by:

1.5.1    Using their copy of the complaint, prepare a complete and detailed response to the complaint explaining the employee’s specific involvement.

1.5.2    Collect all personal documentation that relates to the lawsuit and preserve any relevant documentation and/or evidence, which might otherwise be destroyed.

1.5.3    Mail the original response to Legal Services within ten calendar days of receiving the complaint. Keep their copy of the complaint and response for future/necessary reference to the lawsuit. The ten calendar days only applies to the employee’s response to the lawsuit. The original lawsuit documents must be forwarded to Legal Services immediately.

1.5.4    Await contact from Legal Services or the Arizona Assistant Attorney General assigned to the case and fully cooperate and assist in the defense.

1.7    Employees who fail to comply with the procedures outlined in this Department Order shall be subject to disciplinary action as outlined in Department Order #508, Employee Discipline.

1.1    Employees who are summoned or subpoenaed in a civil or criminal case to give testimony or evidence in an official capacity shall:

1.1.1    Notify their immediate supervisor of any request to testify or of any summons, subpoena or subpoena duces tecum.

1.1.2    Upon receipt of a summons, subpoena or subpoena duces tecum, immediately forward a copy of it, through the chain of command, to Legal Services.

1.1.3    Comply with instructions Legal Services staff may provide concerning a response to a subpoena or a subpoena duces tecum.

1.1.4    Respond to the subpoena in an on-duty status.

1.1.5    Comply with departmental grooming standards when appearing in response to a subpoena, as outlined in Department Order #503, Employee Grooming and Dress. In their official capacity, uniformed staff shall attend court and other subpoenaed activities in their "Class A" uniform. Civilian staff shall attend court and subpoenaed activities in Professional Business Attire.   

1.1.6    Submit claims to the Department for necessary expenses, in accordance with established policies and procedures, for in-state or out-of-state travel costs, except when such expenses are prepaid by the entity, which originated the subpoena.

1.1.7    Obtain reimbursement for out-of-state travel costs, which shall be paid to the Department, from the entity, which originated the subpoena. If the entity prepays the travel costs, no reimbursement is involved.

1.1.8    Forward any witness fees received, except for mileage allowance, through their Business Administrator to the Administrative Services Division. If a state vehicle is used in response to the subpoena, the mileage allowance shall also be forwarded through their Business Administrator to the Administrative Services Division.

1.1.9    Be truthful at all times.

1.2    Upon receipt of notification outlined 1.1.1 of this section, supervisors shall notify their Warden or Administrator through the chain of command.

1.3    The Warden or Administrator shall immediately contact Legal Services in the following circumstances:

1.3.1    If it appears a claim could be made against the Department based on the anticipated testimony.

1.3.2    If response to the subpoena is not directed to the proper person or requires action that is another person's responsibility.

1.3.3    If there is less than 48 hours notice and response to the subpoena with such short notice would unreasonably interfere with the employee's assigned duties and responsibilities.

1.3.4    If the employee is unable to appear in response to the subpoena for any reason.

1.3.5    If the employee needs instructions or clarification of any matter that may be questionable or inappropriate regarding a request for information or a subpoena.

107.05    JURY SERVICE OR CIVIL CASE WITNESS - Employees who are called to jury service or subpoenaed as a civil case witness shall:

1.1    Immediately notify their supervisor of the facts surrounding the jury service or civil case witness activity, and the date and time that absence may be required.

1.2    Contact the Personnel Services Bureau when necessary to obtain clarification about whether a matter involves appearance for jury service, as a civil witness or in a personal capacity.

1.3    Report jury services or civil witness activity or any absence from work required for these activities as Civic Duty leave with pay.

1.3.1    An employee who is subpoenaed as a witness by any court or administrative, executive or judicial body in this state may be absent with pay unless the testimony or evidence to be given relates to the employee's commercial, business or personal matters.

1.4    Submit a copy of any payment/reimbursement received for jury service, or compliance with a civil subpoena through their Business Administrator to the Administrative Services Division, payroll section indicating the amount paid/reimbursed for the mileage.

1.4.1    The employee’s gross wages shall be decreased by the amount of fees received less mileage.

107.06    PERSONAL CAPACITY WITNESS - Employees who are subpoenaed in their personal capacity and who do not qualify as a civil case witness shall:

1.1    Immediately notify their supervisor of the date and time that absence may be required and the reason for the absence.

1.2    Report as compensatory time off, annual leave or leave without pay any absence from work required by the response to the summons or subpoena. Requests for leave without pay shall be in accordance with Department Orders #518, Personnel Rules-Delegated Authority.

107.07    PROFESSIONAL CONSULTANT - Employees who are subpoenaed in a civil or criminal case to give testimony or evidence as a professional consultant (expert witness) shall respond to the subpoena on approved leave and at their own expense.

107.08    CHARGES FOR COPYING DOCUMENTS - Records custodians shall charge a fee, in accordance with Department Order #201, Information Release.

107.09    SETTLEMENT CONFERENCES

1.1    Legal Services shall be the point of contact for settlement conferences and shall coordinate all agreements and approvals with the Director's Office.

1.2    Normally, a Warden or Deputy Warden shall be the Department's official representative to coordinate the responses with Legal Services; however, employees at all levels may be requested to participate in settlement conferences.

AFFIDAVIT - A written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before a person having the authority to administer such oath or affirmation. For example, affidavits are completed by peace officers to obtain search warrants.

CIVIL CASE WITNESS OR JUROR – An employee who is called to jury service; subpoenaed to give testimony or evidence regarding any matter as a private citizen and not in an official capacity.

CONFLICT OF INTEREST - Activity and conduct that is prohibited by Arizona State Personnel Rules, R2-5-501, Standards of Conduct, as well as by related Arizona Revised Statutes and Department Order #501, Employee Professionalism/Ethics/Conduct.

DEPOSITION - A discovery device by which one party asks oral questions of the other party or of a witness for the other party. The person who is deposed is called the deponent. The deposition is conducted under oath outside of the court room, and a transcript or recording is made.

EXPERT WITNESS - An employee who has been qualified by the court, prior to expressing opinions in a case, as an expert and who thereby will be allowed (by answering questions posed) to assist the court in understanding complicated and technical subjects not within the understanding of the average lay person. The Department's expert witnesses testify in their official capacity.

GENERAL COUNSEL – An individual designated by the Director to liaison with the Arizona Office of the Attorney General and provide legal advice to the Department.

OFFICIAL CAPACITY WITNESS - The presentation of oneself as a Department employee engaged in Department business. The testimony or evidence to be given relates to official Department matters.

PERSONAL CAPACITY WITNESS - Includes the following situations:

PROFESSIONAL CONSULTANT - An employee who is considered an expert in a specialized field, who provides consultation services for a fee, and who may provide advice or testimony as a paid expert witness. Teaching and lecturing are not included in this definition.

SUBPOENA - A writ issued by a court that orders a person to appear at a prescribed time and place to give testimony upon a certain matter.

SUBPOENA DUCES TECUM - A writ issued by a court that orders a witness to produce at a trial a document or paper that is in his possession that is pertinent to the issues of a pending controversy.

SUMMONS - A command issued by a court that orders a person to appear at a prescribed time and place to answer a complaint. Officers of the court deliver summonses to employees against whom a complaint has been filed in court.

WITNESS - An employee who testifies to what he or she has seen, heard, or knows.

DORA SCHRIRO

DIRECTOR

Attachment A - Authorization to Accept Service

Attachment B - Summons in a Civil Action

Attachment C - Notice of Lawsuit and Receipt for Waiver of Service of Summons

Attachment D - Waiver of Service of Summons

Attachment E - Federal Complaint Form by Prisoner

Attachment F - Court Order

A.R.S. 38-501 et seq, Conflict of Interest of Officers and Employees.

A.R.S. 41-770, Causes for Dismissal or Discipline.

A.A.C. R2-5-406, Civic Duty Leave.

A.A.C. R2-5-414, Leave Without Pay.

A.A.C. R2-5-501, Standards of Conduct.

I hereby authorize the Office of the Attorney General to accept on my behalf in connection with the following lawsuit:

NAME OF SUIT: __________________________________________________________________

COURT NUMBER: __________________________________________________________________

DATE RECEIVED:____________________________________________________________________

METHOD OF SERVICE: (Check One)

MAIL BY U.S. MARSHALL __________

MAIL BY INMATE __________

IN PERSON BY PROCESS SERVER __________

____________________________________ ___________________________________________

Defendant (Please Print) Defendant (SIGNATURE)

_____________________________________ ________________________________________

Work Location/Unit Contact Phone Number

___________________________________________

Date

Attachments B through F are not available in this format