THE ATTORNEY GENERAL HAS RECEIVED YOUR LETTER ASKING FOR AN OFFICIAL OPINION ADDRESSING, IN EFFECT, THE FOLLOWING QUESTIONS:
1. WHETHER IT IS PROPER FOR THE FATHER-IN-LAW OF THE MAYOR OF MOUNTAIN VIEW, OKLAHOMA, TO BE APPOINTED TO THE PUBLIC HOUSING AUTHORITY BOARD, EVEN THOUGH THE MAYOR DID NOT PARTICIPATE IN VOTING FOR THE APPOINTMENT?
2. WHETHER THERE IS A CONFLICT OF INTEREST FOR A MEMBER OF THE TOWN BOARD OF TRUSTEES TO OWN THE ONLY NEWSPAPER IN TOWN WHERE LEGAL PUBLICATIONS AND OTHER ADS ARE PUBLISHED AND ALSO, THE BOARD PURCHASES OFFICE SUPPLIES FROM THE TRUSTEE?
3. WHEN THERE IS AN ELECTION OF THE TOWN BOARD OF TRUSTEES AND NEW MEMBERS WERE ELECTED BUT BEFORE THE NEW BOARD TAKES THEIR OFFICE THERE IS A RESIGNATION OF ONE OF THE MEMBERS, MAY THE OLD BOARD FILL THE VACANCY?
BECAUSE YOUR QUESTIONS MAY BE ANSWERED BY REFERENCE TO CLEARLY CONTROLLING STATUTES AND PRIOR ATTORNEY GENERAL OPINIONS, THE ISSUANCE OF AN OFFICIAL OPINION OF THE ATTORNEY GENERAL IS NEITHER DESIRABLE NOR NECESSARY. THE DISCUSSION WHICH FOLLOWS IS THEREFORE, RATHER, THE ANALYSIS AND CONCLUSIONS OF THE UNDERSIGNED ASSISTANT ATTORNEY GENERAL.
THIS IS NOT AN OFFICIAL OPINION OF THE ATTORNEY GENERAL.
FURTHERMORE, YOUR ISSUES INVOLVED DETAILED FACTUAL QUESTIONS AND IT HAS BEEN THE LONG STANDING POLICY OF THIS OFFICE THAT WE ARE UNABLE TO ANSWER DIRECTLY FACTUAL QUESTIONS. IT IS ESPECIALLY INAPPROPRIATE FOR OUR OFFICE TO RULE ON AN ACTUAL CONTROVERSY. HOWEVER, I AM ABLE TO SET FORTH PARAMETERS AND APPLICABLE LAW FOR YOU TO CONSIDER WITH REGARD TO THESE QUESTIONS.
OKLAHOMA STATUTES PROHIBIT CERTAIN EMPLOYMENT PRACTICES WHICH FALL UNDER THE RUBRIC OF NEPOTISM. YOUR QUESTION SPECIFICALLY INVOLVES MUNICIPAL EMPLOYMENT AND NOT STATE EMPLOYMENT. THE KEY STATUTE APPLICABLE HERE IS 11 O.S. 8-106 (1990) WHICH STATES IN PERTINENT PART:
"NO ELECTED OR APPOINTED OFFICIAL OR OTHER AUTHORITY OF THE MUNICIPAL GOVERNMENT SHALL APPOINT OR ELECT ANY PERSON RELATED BY AFFINITY OR CONSANGUINITY WITHIN THE THIRD DEGREE TO ANY GOVERNING BODY MEMBER OR TO HIMSELF . . ."
THE CRIMINAL STATUTE ON NEPOTISM IS FOUND AT 21 O.S. 481, WHICH STATES IN PERTINENT PART:
"IT SHALL BE UNLAWFUL FOR ANY EXECUTIVE, LEGISLATIVE, MINISTERIAL OR JUDICIAL OFFICER TO APPOINT OR VOTE FOR THE APPOINTMENT OF ANY PERSON RELATED TO HIM BY AFFINITY OR CONSANGUINITY WITHIN THE THIRD DEGREE, TO ANY CLERKSHIP, OFFICE, POSITION, EMPLOYMENT OR DUTY IN ANY DEPARTMENT OF THE STATE, DISTRICT, COUNTY, CITY OR MUNICIPAL GOVERNMENT OF WHICH SUCH EXECUTIVE, LEGISLATIVE, MINISTERIAL OR JUDICIAL OFFICER IS A MEMBER, WHEN THE SALARY, WAGES, PAY OR COMPENSATION OF SUCH APPOINTEE IS TO BE PAID OUT OF THE PUBLIC FUNDS OR FEES OF SUCH OFFICE. . . ."
ATTORNEY GENERAL OPINION 90-025, WHICH WAS ADDRESSED TO YOU, DISCUSSED WHAT WAS AN APPOINTMENT. THE OPINION LOOKED AT THE ORDINARY DEFINITION OF APPOINTMENT TO CONCLUDE THAT AN "APPOINTMENT IS THE N . . . DESIGNATION OF A PERSON TO HOLD A NONELECTIVE OFFICE OR PERFORM A FUNCTION. UNDER THIS DEFINITION, THE OPINION CONCLUDED THAT A VIOLATION WOULD OCCUR WHERE A