ANY OTHER ENTITY AND STATE CAR.NOT OWN STOCK IN A CORPORATION); 11 O.S. 17-210/11 O.S. 17-216 (RESTRICTIONS ON HOW MUNICIPALITIES ARE TO ADMINISTER THEIR FUNDS); AND 62 O.S. 1 ET SEQ. (RESTRICTIONS ON HOW STATE FUNDS ARE TO BE ADMINISTERED). HOWEVER, A PUBLIC TRUST IS A COMPLETELY SEPARATE LEGAL ENTITY FROM ITS GOVERNMENTAL BENEFICIARY. STATE V. GARRISON, 348 P.2D 859, 862-863 (OKLA.1959); MORRIS V. OKLAHOMA CITY, 299 P.2D 131, 136-37 (OKLA.1956); BOARD OF COUNTY COMM'RS V. WARRAM, 285 P.2D 1034, 1040-41 (OKLA.1955). THUS, SO LONG AS THE FUNDS OF A PUBLIC TRUST DO NOT ORIGINATE FROM OR PASS THROUGH THE PUBLIC TREASURY OF ITS GOVERNMENTAL BENEFICIARY, THE TRUST'S FUNDS ARE NOT "PUBLIC FUNDS" AND ARE NOT SUBJECT TO THE RESTRICTIONS ON THE USE OF SUCH FUNDS. A.G. OPIN. NOS. 90-023; 86-131; 86-070; 83-227.
IN APPLYING THE FOREGOING AUTHORITIES TO THE QUESTION YOU HAVE PRESENTED, MUNICIPALITIES CLEARLY ARE FREE TO ENGAGE IN THE BUSINESS OF PROVIDING ELECTRIC UTILITY SERVICE "AND TO ENTER INTO SUCH SHORT- OR LONG-TERM CONTRACTS, AGREEMENTS...AND DO ALL THINGS NECESSARY AND PROPER TO FURTHER THE CAPABILITY OF THE MUNICIPALITY PURSUANT TO THE AUTHORITY GRANTED TO IT BY THE OKLAHOMA STATUTES AND THE CONSTITUTION...TO PROVIDE SAID...SERVICES AS MAY BE DEEMED APPROPRIATE BY THE GOVERNING BODY OF THE MUNICIPALITY(.)" 11 O.S. 22-104(6). IF IT CAN BE SHOWN THAT THE REBATES AND INCENTIVES REFERENCED IN YOUR QUESTION "FURTHER THE CAPABILITY OF THE MUNICIPALITY" TO PROVIDE ELECTRIC SERVICE THROUGH DECREASED COSTS, IMPROVED LOAD FACTOR, AVOIDANCE OF THE NEED FOR NEW GENERATION CAPACITY, OR OTHER SIMILAR CONSIDERATIONS, IT WOULD SEEM THAT MUNICIPALITIES ARE FREE TO ENGAGE IN SUCH ACTIVITIES.
THE FACT THAT MUNICIPALITIES IN GENERAL ARE AUTHORIZED TO ENGAGE IN THE INCENTIVE ACTIVITIES RAISED IN YOUR QUESTION DOES NOT NECESSARILY MEAN THAT EACH AND EVERY MUNICIPAL-BENEFICIARY PUBLIC TRUST CAN LEGALLY DO SO. THAT WILL DEPEND UPON WHETHER OR NOT A PARTICULAR MUNICIPALITY HAS DELEGATED THAT AUTHORITY TO THE PUBLIC TRUST WHICH OPERATES ITS ELECTRIC UTILITY. THAT, OF COURSE, IS A QUESTION OF FACT WHICH CANNOT BE RESOLVED BY THE ATTORNEY GENERAL. IT WOULD BE DETERMINED ON THE BASIS OF THE PARTICULAR LANGUAGE OF THE INSTRUMENT(S) CREATING THE PUBLIC TRUST.
IT IS, THEREFORE, THE OPINION OF THE UNDERSIGNED ATTORNEY THAT THERE IS NO EXPRESS LEGAL PROHIBITION AGAINST A MUNICIPAL BENEFICIARY PUBLIC TRUST, WHICH PROVIDES RETAIL ELECTRIC SERVICE, OFFERING INCENTIVES IN THE FORM OF CASH REBATES OR CREDITS TO CUSTOMER BILLS IN ORDER TO ENCOURAGE CUSTOMERS TO PURCHASE HIGH EFFICIENCY ELECTRICAL APPLIANCES OR TO TAKE CERTAIN ACTIONS TO IMPROVE THE EFFICIENCY OF THEIR EXISTING ELECTRICAL APPLIANCES, THEREBY REDUCING THEIR ELECTRICAL CONSUMPTION. WHETHER A PARTICULAR TRUST CAN CARRY OUT SUCH AN INCENTIVE PROGRAM IS A QUESTION OF FACT, THE ANSWER TO WHICH WILL BE AFFECTED, IN PART, BY THE FOLLOWING:
1) WHETHER THE PARTICULAR PROGRAM AT ISSUE MEETS THE FACTUAL CRITERIA OF "FURTHERING THE CAPABILITY OF THE MUNICIPALITY;" AND
2) WHETHER THE PARTICULAR MUNICIPALITY AT ISSUE HAS ADEQUATELY DELEGATED THE AUTHORITY TO ENGAGE IN SUCH ACTIVITIES TO ITS PUBLIC TRUST.
(RICK D. CHAMBERLAIN)