SMALL BUSINESS LINKED DEPOSIT ACT, 62 O.S. 88.1 THROUGH 62 O.S. 88.9 ("ACT"). THE ACT PROVIDES FOR A LINKED DEPOSIT LOAN PROGRAM VERY SIMILAR TO THE AG PROGRAM. UNDER THE ACT, THE STATE TREASURER, UPON A RECOMMENDATION BY THE OKLAHOMA LINKED DEPOSIT REVIEW BOARD, MAY PLACE "CERTIFICATES OF DEPOSIT WITH THE ELIGIBLE LENDING INSTITUTION AT UP TO THREE PERCENT (3) BELOW THE COMPARABLE TREASURY BILL RATE, AS DETERMINED AND CALCULATED BY THE STATE TREASURER." 62 O.S. 88.6(C) (1991). JUST AS WITH THE AG PROGRAM, IN RETURN THE LENDING INSTITUTION WILL PROVIDE SMALL BUSINESS LOANS AT AN INTEREST RATE "REDUCED BY AT LEAST THE SAME NUMBER OF PERCENTAGE POINTS THAT THE CERTIFICATE OF DEPOSIT WAS REDUCED UPON PLACEMENT." 62 O.S. 88.6(D) (1991).
THE ACT ALSO PLACES A LIMIT ON THE AMOUNT OF STATE FUNDS THAT CAN BE INVESTED IN LINKED DEPOSIT LOANS: "THE STATE TREASURER MAY INVEST AN AMOUNT NOT TO EXCEED FIFTEEN PERCENT (15%) OF ALL MONIES AVAILABLE TO THE STATE TREASURER FOR INVESTMENT IN ANY LINKED DEPOSIT PROGRAM AUTHORIZED BY LAW." 62 O.S. 88.8 (EMPHASIS ADDED). TO BRING THE 2 AG PROGRAM LIMIT UP TO CORRESPOND WITH THIS 15 LIMIT AND TO CLARIFY THE TOTAL PERCENTAGE THAT COULD BE INVESTED IN LINKED DEPOSIT LOANS, THE LEGISLATURE AMENDED THE AG PROGRAM STATUTE IN 1989 AS FOLLOWS:
"THE TOTAL AMOUNT OF AGRICULTURAL AND SMALL BUSINESS LINKED DEPOSIT LOANS SHALL NOT EXCEED TWO PERCENT (2%) FIFTEEN PERCENT (15%) OF ALL INVESTABLE STATE FUNDS UNDER THE CONTROL OF THE STATE TREASURER"
1989 OKLA. SESS. LAWS, C. 248, 2(C)(L) (STRIKEOUTS AND UNDERLINING APPEAR IN ORIGINAL AND INDICATE DELETIONS AND ADDITIONS RESPECTIVELY), AMENDING 2 O.S. 1766(C)(1) (1991).
IT COULD BE ARGUED THAT UNDER 62 O.S. 88.8 THE USE OF THE WORD "ANY" MEANS THAT THE 15% LIMIT APPLIES TO EITHER AGRICULTURAL LINKED DEPOSIT LOANS OR SMALL BUSINESS LINKED DEPOSIT LOANS FOR A TOTAL CAP OF 30%. THE 1989 AMENDMENT CITED ABOVE, HOWEVER, DEMONSTRATES THAT THE LEGISLATURE INTENDED FOR THE TOTAL CAP TO BE 15% FOR THE MIX OF BOTH KINDS OF LOANS. THE LEGISLATURE ADDED THE LANGUAGE AGRICULTURAL AND SMALL BUSINESS" TO MORE SPECIFICALLY DESCRIBE THE KINDS OF LINKED DEPOSIT LOANS TO WHICH THE 15% CAP APPLIES AND TO REFLECT THE ADDITION OF THE SMALL BUSINESS LINKED DEPOSIT LOAN PROGRAM IN 1988.
ANY OTHER CONSTRUCTION WOULD NOT REFLECT THE INTENT OF THE LEGISLATURE AND WOULD NOT HARMONIZE THE LANGUAGE FOUND IN THE AG PROGRAM STATUTE AND THE ACT REGARDING A 15% CAP ON INVESTING STATE FUNDS IN LINKED DEPOSIT LOAN PROGRAMS. THE REASONING BEHIND THE 15% CAP FOR ALL AGRICULTURAL AND SMALL BUSINESS LINKED DEPOSIT LOANS IS SIMPLE. THE LEGISLATURE DID NOT WANT MORE THAN 15% OF STATE FUNDS INVESTED IN INSTRUMENTS EARNING LESS THAN MARKET RATES OF INTEREST.
IT IS, THEREFORE, THE OPINION OF THE UNDERSIGNED THAT:
THE TOTAL DOLLAR AMOUNT OF THE MIX OF OUTSTANDING AGRICULTURAL AND SMALL BUSINESS LINKED DEPOSIT LOANS ADMINISTERED BY THE STATE TREASURER MAY NOT EXCEED 15% OF ALL INVESTABLE STATE FUNDS UNDER THE CONTROL OF THE STATE TREASURER.