Question Submitted by: General Myles Deering, Executive Director, Oklahoma Department of Veterans Affairs2017 OK AG 8Decided: 08/28/2017Oklahoma Attorney General Opinions

¶0 This office has received your request for an official Attorney General opinion in which you ask, in effect, the following question:¶1 Whether proceeds from the sale of real property under the jurisdiction of the Oklahoma Department of Veterans Affairs must be deposited in (1) the Maintenance of State Buildings Revolving Fund established by 62 O.S.Supp.2016, § 908(H), or, alternatively, (2) the Capital Improvement Revolving Fund created pursuant to 72 O.S.Supp.2016, § 63.19(D)? 

I.

Background

¶2 The Oklahoma Department of Veterans Affairs ("ODVA") is a cabinet-level department administered by the Oklahoma Veterans Commission through rules, regulations, and policies promulgated by the Commission. 72 O.S.Supp.2016, § 63.1; see also id § 63.3. ODVA has broad authority over providing care and assistance to military veterans, including making and entering into contracts to finance hospitals, healthcare facilities, and Oklahoma Veterans Centers. See id. §§ 63.1, 63.12, 63.13, 202. ODVA is also authorized to acquire and manage real property in certain circumstances, see id. § 63.19, but the statute does not provide specific procedures for the sale or other disposition of such property. Accordingly, ODVA must follow the procedure set forth in Title 61, Section 327 in order to sell a parcel of real property. See A.G. Opin. 1984-86, at 155 ("Where a Department/Commission has no specific procedures for the disposition of real property, we look to the procedures set forth in [Section 327]").

II.

Discussion

¶3 Title 61, Section 327 of the Oklahoma Statutes sets forth the general procedures governing State-owned real property transactions. 61 O.S.Supp.2016, § 327. A sale of such property is triggered by an agency's request to the Office of Management and Enterprise Services ("OMES") to sell a parcel of real property as authorized by: (1) specific legislation, (2) the Long-Range Capital Planning Commission, or (3) a determination that the property is "no longer needed." Id. § 327(B)(1). While the Legislature has provided for these three avenues to sell State-owned real property, the Long-Range Capital Planning Commission ("Commission") is charged with the ultimate authority to approve all transfers of State-owned real property. 74 O.S.Supp.2016, § 61.8(F). The only State entities exempt from this approval requirement are the Oklahoma Ordnance Works Authority ("OOWA"), the Commissioners of the Land Office ("CLO"), the Oklahoma Department of Transportation ("ODOT"), and the Oklahoma Turnpike Authority ("OTA"). Id. § 61.8(H).

> A. The Long-Range Capital Planning Commission's role in transfers of State-owned real property.

¶4 The Long-Range Capital Planning Commission was created in 1992 as a part of the State Capital Improvement Planning Act, codified in Title 62, Sections 900 and 901. See 1992 Okla. Sess. Laws c. 330, §§ 1, 2. Under the State Capital Improvement Planning Act, the Commission "advise[s] and assist[s] the Legislature in providing for real property capital facility needs for this state." 62 O.S.Supp.2016, § 901(A). This advice and assistance is provided primarily through the preparation of an annual capital budget plan and a State capital plan that addresses "the state capital facility needs for the next ensuing eight (8) years." Id. § 901(F)(1). For some twenty (20) years, the focus of the Commission was on planning for the immediate and future building needs of the State's capital facilities.1

¶5 In 2013, the Legislature expanded the Commission's role by enacting what is now codified at Title 74, Section 61.8. See 2013 Okla. Sess. Laws c. 209, § 2. Section 61.8 requires the Commission to "work to decrease the amount of property owned by Oklahoma state government, return state-owned property to private sector ownership, better maintain and utilize the state's needed capital assets and, whenever possible, eliminate the practice of state agencies leasing real property not owned by the state." 

74 O.S.Supp.2016, § 61.8

¶6 Also in 2013, the Legislature amended Title 61, Section 327-the general procedures for transferring State-owned real property-to permit an agency to seek authorization from the Commission to sell real property.

2
61 O.S.Supp.2016, § 327

¶7 In 2014, the Legislature amended Title 74, Section 61.8 by adding subsection F, further broadening the Commission's powers:

> No state agency, board, commission or public trust having the state as its beneficiary shall transfer any real property owned by the agency, board, commission or trust to any other state agency, board, commission, state beneficiary trust or any public or private entity unless the transfer is first approved by the Long-Range Capital Planning Commission . . . The Commission shall not approve any transfer unless proceeds from the sale shall be deposited in the Maintenance of State Buildings Revolving Fund as established by Section 908 of Title 62 of the Oklahoma Statutes.

3

2014 Okla. Sess. Laws ch. 286, § 1 (codified at 

74 O.S.Supp.2016, § 61.8

¶8 Under the plain and broad language of Section 61.8(F), the Commission must approve or ratify an agency's decision to sell real property, regardless of the underlying authority for the sale. The Commission's approval authority extends to all but four State entities-OOWA, CLO, ODOT, and OTA. 

74 O.S.Supp.2016, § 61.8
62 O.S.Supp.2016, § 901

¶9 At first glance, this requirement to obtain Commission approval might appear to conflict with statutes that grant State agencies like ODVA the authority to transfer real property. See 

72 O.S.Supp.2016, § 63.20
1980 OK 89
612 P.2d 719
61 O.S.Supp.2016, § 327

¶10 Thus, the requirement to obtain Commission approval pursuant to Section 61.8(F) does not repeal existing statutes authorizing State agencies to dispose of, or otherwise transfer, real property. Rather it simply requires agencies wishing to do so to consult the Commission, which will evaluate the proposed disposition and either approve or disapprove it informed by its overall knowledge of the capital facility needs of the State as a whole. We do not view the inclusion of this additional step in the statutory scheme for disposing of State-owned property as conflicting with statutes that authorize State agencies to sell real property under their jurisdiction. See Roach v. Atlas Life Ins. Co., 

1989 OK 27
769 P.2d 158
> B. Deposit of Proceeds from the Sale of State-Owned Real Property.

¶11 Once an agency requests to dispose of State-owned real property under Title 61, Section 327, OMES reviews the request, including a determination of the legal authority for the sale. Id. § 327(C). In addition, the Commission must also approve the request, if it has not done so already. 

74 O.S.Supp.2016, § 61.8
61 O.S.Supp.2016, § 327
61 O.S.Supp.2016, § 327

¶12 The Commission "shall not approve any transfer unless proceeds from the sale shall be deposited within the Maintenance of State Buildings Revolving Fund[.]" 

74 O.S.Supp.2016, § 61.8

¶13 As noted in your request, the statute governing ODVA specifically provides that "[a]ll proceeds from the use, sale or lease of properties under the control of the Oklahoma Veterans Commission [, and thus ODVA,] shall be deposited in the Capital Improvement Program Revolving Fund

4
72 O.S.Supp.2016, § 63.20

¶14 When two statutes conflict, the statute enacted later in time controls over the earlier enacted statute. Boice v. State, 

1970 OK 148
473 P.2d 241
5
1980 OK 36
608 P.2d 1139

¶15 Finally, the deposit of proceeds from the sale of ODVA real property into the Maintenance of State Buildings Revolving Fund does not eliminate the ODVA's Capital Improvement Program Revolving Fund or its purpose. Per Title 72, Section 63.19(A), the ODVA Capital Improvement Program Revolving Fund includes donated individual and corporate Oklahoma income tax refunds. Thus, the ODVA Capital Improvement Program Revolving Fund may continue to receive funds from sources other than proceeds from the sale of ODVA real property.

III.

Conclusion

¶16 ODVA lacks specific procedures to sell real property and must therefore use the procedures set forth in Title 61, Section 327. See A.G. Opin. 1984-86, at 155. Further, ODVA must obtain Commission approval before selling or otherwise transferring real property under its jurisdiction regardless of the source of the authorization for the sale under Section 327(B)(1). 

74 O.S.Supp.2016, § 61.8
72 O.S.Supp.2016, § 63.20

¶17 It is, therefore, the official Opinion of the Attorney General that:

> 1. The Oklahoma Department of Veterans Affairs must use the procedures set forth in 

61 O.S.Supp.2016, § 327
> 2. The sale procedures under 

61 O.S.Supp.2016, § 327
> 3. In order to sell or otherwise transfer Department-owned real property, the Oklahoma Department of Veterans Affairs must obtain the approval of the Long-Range Capital Planning Commission as required by 

74 O.S.Supp.2016, § 61.8
> 4. Under 

74 O.S.Supp.2016, § 61.8

Mike HunterAttorney General of OklahomaAbby DillsaverGeneral Counsel to the Attorney General

FOOTNOTES

1 While "capital facility" is not defined by statute, the Commission has defined "capital item" to mean:

> an item with a value or cost of $25,000 or more and a useful life of at least five years. It will further mean a group of like items, purchased together or components of one another, with a cost or value of $25,000 or more and a useful life of at least five years. Equipment being leased with the intent to own at the end of the lease terms with the cost or value of $25,000 or more and useful life of at least five years will also be considered capital in nature.

OAC 428:10-1-3.

2 Prior to this amendment, an agency could request OMES, or its predecessors, to sell real property based on legislative authorization or upon the agency's written determination that the property was no longer needed. See 2012 Okla. Sess. Laws ch. 304, § 818. The 2013 amendment to Section 327 also allowed for OMES-in addition to the requesting agency-to make the "no longer needed" determination. 2013 Okla. Sess. Laws ch. 209, § 7.

3 Title 62, Section 908 sets forth the Oklahoma Asset Reduction and Cost Savings Program. It requires OMES to gather information on underutilized State-owned properties and publish a comprehensive list of all State-owned properties, to include a sub-list of the five percent (5%) most underutilized properties. Id. § 908(A)-(C). The Program was originally enacted in 2011. 2011 Okla. Sess. Laws ch. 115, § 1. The Maintenance of State Buildings Revolving Fund was created in 2012. 2012 Okla. Sess. Laws ch. 121, § 2.

4 The Legislature created the Capital Improvement Program Revolving Fund in order to fund the "[ODVA] Equipment and Capital Improvement Program." See 72 O.S.Supp.2016, § 63.19.

5 Section 61.8(F) is not only the later enacted statute, it is also the later amended statute. See 2015 Okla. Sess. Laws ch. 54, § 37 (amending 74 O.S. 61.8); 2014 Okla. Sess. Laws ch. 212, § 15 (amending 72 O.S. 63.20).