RE: LOTTERIES

THIS OFFICE HAS RECEIVED YOUR LETTER OF NOVEMBER 15, 1988, CONCERNING WHETHER A PARTICULAR ENTERPRISE IS VIOLATING STATE LAWS PERTAINING TO THE REAL ESTATE INDUSTRY. IN YOUR LETTER, YOU ASK MS. RHODES TO ADVISE AS TO HER AGREEMENT, OR LACK THEREOF, OF THE OPINION RENDERED BY ONE PHILIP HOLMES, AN ATTORNEY, REGARDING THIS ISSUE. IN YOUR LETTER YOU IDENTIFY MR. HOLMES AS AN ATTORNEY WHO ACTS AS COUNSEL TO THE COMMISSION. PLEASE BE ADVISED THAT MS. RHODES IS OUT OF THE STATE ON ANNUAL LEAVE FOR SEVERAL DAYS. ACCORDINGLY, THE ATTORNEY GENERAL HAS ASKED ME TO REPLY TO YOUR LETTER.

THE SCENARIO THAT YOU HAVE OUTLINED IN YOUR LETTER IS CERTAINLY ONE THAT DESERVES A FULLER REVIEW, AND EITHER I OR MS. RHODES WILL BE HAPPY TO SIT DOWN WITH YOU AND GO OVER THE MATTER IN DETAIL. HOWEVER, I AM NEVER COMFORTABLE WITH STATING WITHOUT ANY QUALIFICATION THAT I BELIEVE THAT LEGAL ACTION IS CALLED FOR, MERELY FROM A REVIEW OF DOCUMENTS.

ON A RELATED MATTER, I NOTE FROM YOUR LETTER THAT YOU IDENTIFY MR. HOLMES AS YOUR LEGAL COUNSEL. I FEEL OBLIGATED TO INFORM YOU THAT THE ATTORNEY GENERAL HAS ADVISED THROUGH THE YEARS THAT A STATE AGENCY DOES NOT HAVE THE LEGAL AUTHORITY TO RETAIN A LEGAL COUNSEL INDEPENDENT OF THIS OFFICE, UNLESS THE ENABLING STATUTES GOVERNING THE POWERS OF THE AGENCY SPECIFICALLY PROVIDE FOR SUCH SERVICES. I HAVE ENCLOSED COPIES OF TWO RECENT ATTORNEY GENERAL OPINIONS ON POINT. MY REVIEW OF THE STATUTES GOVERNING YOUR COMMISSION REVEALS NO AUTHORITY FOR IT TO RETAIN INDEPENDENT LEGAL COUNSEL.

YOU MAY BE AWARE THAT THE BOARD OF VETERINARY MEDICAL EXAMINERS HAS RECENTLY BEEN THE OBJECT OF AN OFFICIAL INVESTIGATION CONCERNING THE FISCAL ACTIONS OF THAT BOARD. ONE OF THE PUBLICLY REPORTED AREAS OF CONCERN RAISED IN THAT INVESTIGATION WAS THE ACTION OF THAT BOARD IN HIRING OUTSIDE LEGAL COUNSEL WITHOUT LAWFUL AUTHORITY. THIS OFFICE CONTINUES TO ADHERE TO THE RULINGS REFERRED TO ABOVE THAT AGENCY HIRING OF INDEPENDENT LEGAL COUNSEL IS NOT LAWFUL WITHOUT SPECIAL STATUTORY AUTHORITY, AND I THINK IT ADVISABLE FOR YOU TO DISCUSS THIS MATTER WITH THIS OFFICE FURTHER BEFORE ANY ADDITIONAL ACTIVITIES OF MR. HOLMES ARE CALLED UPON BY THE COMMISSION.

PLEASE FEEL FREE TO CALL ME AT YOUR CONVENIENCE IF YOU HAVE ANY QUESTIONS ABOUT THIS LETTER.

(MICHAEL SCOTT FERN)