Rep. Emily O’Brien seeks to let agencies hire special assistant attorneys amid concerns over centralized legal control

Representative Emily O’Brien introduced House Bill 1601 to the House Government and Veterans Affairs Committee as a measure to restore agency control over hiring of special assistant attorney generals.

“Thank you, Chairman Schauer and members of the House Government and Veterans Affairs Committee. I’m Representative Emily O’Brien representing District 42 in Grand Forks. I’m here today to introduce House Bill 16‑01 relating to special assistant attorney generals. This bill deals with the hiring of special assistant attorney generals employed by state agencies,” O’Brien said.

O’Brien told the committee the bill is aimed at preserving separation of powers, preventing conflicts of interest and giving elected officials and agencies more direct control over their legal counsel. She said centralizing legal services under the Attorney General after 1987 created gaps in litigation and administrative support and made agencies dependent on assignments that could change with political shifts. “This legislation is not just a matter of administrative efficiency; it’s about protecting integrity of state government, ensuring accountability, and upholding the separation of powers,” she said.

The Department of Water Resources, represented by Director Rhys Haas, testified in support and detailed the agency’s history and recent reorganization into a cabinet agency. Haas told the committee budget cuts in the 1990s eliminated the department’s in‑house counsel and that the 2021 reorganization increased the department’s regulatory scope without restoring a general counsel position. He described complex legal duties—water appropriation, drainage, floodplain management, sovereign‑lands management and interstate and international compacts—that he said justify an in‑house attorney. He said relying on outside counsel raises costs and that attorneys assigned from the Attorney General’s office now cover many agencies, stretching the Attorney General’s capacity.

Christopher Joseph, general counsel to the governor, and representatives of the Insurance Department and other agencies also voiced support, saying some agencies need specialized attorneys who can be hired and disciplined by the elected official or agency they directly serve. Joseph said the bill would result in hiring that aligns attorneys’ loyalties to the officials who employ them rather than to the Attorney General’s office.

The attorney general’s office opposed the bill at the hearing. Assistant Attorney General Mary Kay Kelsh testified the office already provides specialized assistance and SAG designations allow agency‑hired attorneys to represent the state in court. Kelsh warned that removing the Attorney General’s authority to revoke SAG status would disrupt the state’s centralized legal planning and could create multiple, potentially conflicting counsel authorized to represent the state in litigation. She also told the committee the AGO assigns attorneys with portfolio expertise and said turnover and pay‑scale mismatch are problems but ones the AGO is addressing through pay adjustments.

Committee members pressed supporters for specifics about fiscal notes and hiring plans. Haas said the fiscal note was available under House Bill 1020 and that restoring an in‑house attorney would still require appropriations approval. Members asked how often agencies now receive the same assigned AGO attorney and whether disputes between agency counsel and the Attorney General’s office would be possible under the bill; proponents said collaboration would continue but that agencies need authority to hire and retain counsel aligned with their missions.

No formal committee action on HB1601 was recorded in the hearing transcript.

Why it matters: The bill would change who controls legal representation for state agencies and elected officials and therefore how disputes, regulatory actions, and litigation get handled on matters ranging from water rights to administrative proceedings. Supporters framed the change as restoring accountability and efficiency; the Attorney General’s office framed it as a threat to consistent statewide legal strategy.

What’s next: The committee hearing closed after multiple witnesses testified for and against the bill. If the committee advances the bill, appropriations and policy reviews will be required before any in‑house counsel positions are funded or created.