RE: UNDERGROUND STORAGE TANK INDEMNITY FUND
THIS OFFICE HAS RECEIVED YOUR LETTER ASKING FOR A PROMPT RESPONSE TO A LEGAL QUESTION REGARDING EXPENDITURES FROM THE UNDERGROUND STORAGE TANK INDEMNITY FUND ("THE FUND") CREATED BY 17 O.S. 353 (1990). I WANT TO INITIALLY POINT OUT THAT THE USUAL PROTOCOL FOR THIS OFFICE RESPONDING TO LEGAL QUESTIONS POSED BY YOUR AGENCY IS FOR THE FULL COMMISSION TO APPROVE OF REQUESTS WHICH AFFECT YOUR ENTIRE AGENCY. SUCH A REQUEST SHOULD ORDINARILY BE ACCOMPANIED BY A LEGAL MEMORANDUM FROM YOUR AGENCY COUNSEL AFTER SOME RESEARCH IS DONE ON THE QUESTION ASKED. WE ARE NOT STRICTLY ADHERING TO THIS POLICY IN THE INSTANT MATTER BECAUSE YOUR REAL QUESTION IS ABOUT THE APPLICABILITY OF THE CENTRAL PURCHASING ACT AND BECAUSE OF THE URGENCY OF THE SITUATION.
THERE ARE MANY QUESTIONS THAT COULD BE RAISED AND DISCUSSED IN ANSWERING YOUR QUESTION. HOWEVER, WE WILL NARROWLY ANSWER YOUR PRECISE QUESTION. WE WILL FIRST ASSUME THAT ABSENT THE EXCLUSION LANGUAGE IN 17 O.S. 353(B), PURCHASES OF COMPUTER EQUIPMENT BY THE COMMISSION ORDINARILY GO THROUGH THE PURCHASING DIVISION OF THE OFFICE OF PUBLIC AFFAIRS. WE WILL ALSO ASSUME THAT COMPUTER EQUIPMENT COMES WITHIN THE TERM "COSTS . . . FOR . . . ADMINISTRATION" AS THAT TERM IS USED IN 17 O.S. 353(E)(2). WE ARE ASSUMING BOTH OF THESE LEGAL CONCLUSIONS AND NOT ANSWERING THEM.
PURSUANT TO 17 O.S. 353(E)(2) (1990), MONIES IN THE FUND MAY ONLY BE USED FOR TWO (2) PURPOSES. IT MAY BE USED FOR REIMBURSEMENTS "FOR THE BENEFIT OF OR TO ELIGIBLE PERSONS" WHICH IS DEFINED AT 17 O.S. 352(2), AND MAY BE USED TO PAY COSTS OF ADMINISTERING THE FUND. SECTION 17 O.S. 353(B) PROVIDES AS FOLLOWS:
"B. THE INDEMNITY FUND SHALL BE EXCLUDED FROM BUDGET AND EXPENDITURE LIMITATIONS. REIMBURSEMENTS MADE TO OR FOR THE BENEFIT OF ELIGIBLE PERSONS SHALL BE EXEMPT FROM THE CENTRAL PURCHASING ACT."
VERY CLEARLY THE LEGISLATURE CHOSE ONLY TO EXCLUDE REIMBURSEMENTS TO OR FOR THE BENEFIT OF ELIGIBLE PERSONS, AND NOT THE COSTS OF ADMINISTRATION. ASSUMING THAT THE EXPENDITURE OF FUNDS FROM THE FUND FOR COMPUTER EQUIPMENT IS AUTHORIZED, THERE IS NO REASON WHY THE ACQUISITION SHOULD NOT BE PROCESSED THROUGH CENTRAL PURCHASING.
(THOMAS L. SPENCER)