OGC and the Commonwealth Attorneys Act
The Office of General Counsel came into existence in 1981 following the Pennsylvania Legislature’s passage of the Commonwealth Attorneys Act in 1980. The Act significantly transformed the structure through which the Governor, the Commonwealth, and its executive and independent agencies are represented in all legal matters. In addition to creating the Office of General Counsel, which is headed by a General Counsel appointed by the Governor, the Act established the Office of Attorney General as an independent office headed by an elected Attorney General.
The Act delineates the responsibilities of both offices and seeks to distribute four important legal functions. The first is the interest in ensuring that the Commonwealth has an independent and vigorous law enforcement effort. The second is the need of the Governor and other executive branch officials to be assured of ready access to legal counsel in the daily performance of their duties. The third is the interest in having an independent perspective reviewing the numerous civil cases in which the Commonwealth is involved. The fourth is the right of the Governor and executive agency heads to obtain legal counsel when necessary to represent their interests, present their points of view, and defend their programs in certain civil cases.
Under the Act, the General Counsel serves as chief legal advisor to the Governor and directs the legal activities of the executive branch. The Act also permits the General Counsel to intervene in civil litigation on behalf of the Governor and executive branch. In addition, the General Counsel is empowered to:
- appoint deputy general counsel, chief counsel, and assistant counsel for the operation of each executive agency, and to supervise, coordinate, and administer the legal services provided by the deputy general counsel and the chief counsel and assistant counsel for each executive agency;
- render legal advice and representation prior to initiation of any action, and as required concerning every matter and issue arising in connection with the exercise and performance of the official powers and duties in the operation of executive agencies and, upon request, independent agencies;
- upon request, assist and cooperate fully with the Attorney General and the counsel of each independent agency in the furtherance of the performance of their respective duties;
- initiate appropriate proceedings or defend the Commonwealth or any executive agency when an action or matter has been referred to the Attorney General and the Attorney General declines to initiate appropriate proceedings or defend the Commonwealth or executive agency;
- represent the Governor or an executive agency if the Attorney General has initiated litigation against him or it;
- upon the request of the Governor, appeal certain decisions adverse to an executive agency rendered by the Attorney General concerning deeds, leases, contracts, and fidelity bonds;
- issue rules, guidelines, standards, and regulations as are necessary to carry out the duties of the General Counsel as provided in the Commonwealth Attorneys Act;
- review and approve for form and legality all proposed rules and regulations of executive agencies before they are deposited with the Legislative Reference Bureau as required by the Commonwealth Documents Law;
- review for form and legality all Commonwealth deeds, leases, and contracts to be executed by executive agencies and to prepare uniform instrument forms and pre-approve all such documents which are prepared in accordance with such forms and applicable instructions; and
- provide, through the Office of Legislative Counsel within the Office of General Counsel, advice and recommendations to the Governor concerning the constitutionality and legal effects of bills enacted by the Legislature and presented to him for his signature, as well as to legal counsel to the executive departments and agencies on pending legislation.