78-256

Citing the Oklahoma Constitution, Article X, §§ 5 and 6 as well as Board of Equalization of Tulsa County v. Tulsa Pythian Benevolent Association of Tulsa, 195 Okl. 458, 158 P.2d 904 (1945), the Opinion concluded that clauses whereby the state agrees to pay taxes assessed a private entity, or to reimburse that entity for taxes lawfully paid in connection with a contract between the state and that entity, are void as being contrary to the laws of this state.

Citing Schrom v. Oklahoma Industrial Development, 536 P.2d 908 (1975), the Opinion states purchase of liability insurance, pursuant to legislative authority, by a state agency is a waiver of governmental immunity to the extent of the insurance coverage. Thus, any contract clause requiring the state to purchase liability insurance is requiring the state to waive its immunity and, unless given specific authority to do so by the legislature, is invalid and void.

Citing State ex rel. Nesbitt v. Dist. Ct. of Mayes County, Okla., 440 p.2d 700 (Okla. 1967), in the absence of explicit legislative or constitutional expression to the contrary, the Attorney General possesses complete dominion over every litigation in which he properly appears in the interest of the state. Clauses whereby the state, acting through any agency other than the Attorney General, agrees to waive legal rights or defenses in advance are inconsistent with state law and are void.

Clauses in which a private entity attempts to require the state to authorize the private entity to generally act as an agent for the state are illegal except to the extent authorized by statute.

NOTE: portions of this Opinion relating to multi-year contracts and limitation of liability clauses are not included in this Guide because those portions are overruled by Opinion Nos. 04-18 and 12-18, respectively.

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Attorney General Opinion No. 78-256

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