OAR 123-011-0055: Policies and Procedures for Identification of State’s Bond Counsel for Economic Development Revenue Bonds

(1) Pursuant to ORS 286A.130(1): “The State Treasurer or a related agency may enter into one or more agreements for bond counsel services for a period of not less than one year during any biennium in which there are bonds outstanding that were issued for the state agency or during any biennium in which the state agency expects the State Treasurer to issue bonds for an agency program. A state agency may not enter into an agreement for bond counsel services unless the State Treasurer and the Attorney General have reviewed and approved the terms and conditions of the agreement.” (2) In addition, pursuant to ORS 286A.130(4), the Department or the Treasurer may appoint bond counsel “by letter, certificate or otherwise” to provide bond counsel services “for an individual conduit revenue bond sale.” The Oregon State Treasurer has adopted an administrative rule to address the appointment of bond counsel for the Department’s Economic Development Revenue Bonds. While the law and rule allows for the Department to select an alternate bond counsel, the Department shall give preference to the contracted bond counsel selected through the public solicitation process, unless alternate bond counsel is accepted by the Department as outlined below. In order for the Department to consider alternate counsel, the following conditions must be satisfied: (a) Prior to submitting the application, the borrower must notify the Department in writing of the desire to use alternate counsel. (b) The alternate counsel must meet all of the conditions outlined in OAR 170-061-0100. These conditions include, but are not limited to, the alternate counsel agreeing and representing to Treasury and the Department that it has been engaged as counsel to the State of Oregon, who is its client, and that the firm will represent solely the interests of the State of Oregon in connection with the Economic Development Revenue Bond issuance. (c) The Department must consent to the change in counsel and obtain the approval of the Oregon State Treasurer and the Attorney General for the State of Oregon. (d) If there are any potential conflicts of interest, a no conflict waiver must be approved to the satisfaction of the Department, Treasurer and Attorney General. (e) After approval by the Department and receiving written approval from Treasurer and Attorney General, the Department shall send a Letter of Appointment to the alternate counsel and alternate counsel must mutually agree in writing to the terms and conditions of representation. (3) Final selection of bond counsel is made at the sole discretion of the Department and any requests submitted after receipt of an application for bond financing may or may not be considered by the Department at its sole discretion. (4) For the Oregon Express Bond Program, the Department will use and base any negotiations about documents on the current Express Bond documents approved and being used by the Department.