RE: INTERPRETATION OF 74 O.S. 4244 (1987)
ATTORNEY GENERAL HENRY HAS RECEIVED YOUR LETTER ASKING FOR AN OFFICIAL OPINION CONCERNING THE PROPER INTERPRETATION THAT SHOULD BE GIVEN TO 74 O.S. 4244 (1987). I HAVE PERSONALLY REVIEWED YOUR QUESTIONS AT THE ATTORNEY GENERAL'S REQUEST, AND HAVE DISCUSSED THE MATTER WITH MR. BRUCE MAHAFFEY, WHOM I UNDERSTAND FROM YOUR OFFICE TO BE PARTICULARLY CONCERNED ABOUT THE ANSWERS TO THESE QUESTIONS. DUE TO THE SHORT TIME FRAME WITHIN WHICH A RESPONSE IS NEEDED, THE ATTORNEY GENERAL HAS AUTHORIZED ME TO RESPOND TO YOU THROUGH THIS PERSONAL INFORMAL LETTER. IF THIS LETTER DOES NOT ADEQUATELY RESOLVE YOUR CONCERNS, HOWEVER, PLEASE CONTACT ME FURTHER, AND I WILL SEE THAT A FORMAL OPINION REVIEW PROCESS IS INITIATED.
TITLE 74 O.S. 4244 WAS ADOPTED INTO LAW BY THE 1986 LEGISLATURE, AND BECAME EFFECTIVE ON JUNE 13, 1986. SEE OKLA. SESS. LAWS 1986, CH. 255, 29. IT PROVIDES:
"A. EXCEPT AS OTHERWISE PROVIDED FOR BY THIS SECTION, NO STATE BOARD OR COMMISSION SHALL EMPLOY ANY FORMER MEMBER OF THE BOARD OR COMMISSION.
B. A STATE BOARD OR COMMISSION MAY EMPLOY A FORMER MEMBER OF THE BOARD OR COMMISSION IF AT LEAST ONE (1) YEAR HAS PASSED SINCE THE TERM OF OFFICE OF THE FORMER MEMBER HAS EXPIRED."
YOU ASK, RELATIVE TO THIS STATUTE, WHETHER ITS TERMS APPLY TO MEMBERS OF STATE BOARDS OR COMMISSIONS WHO WERE THEN SITTING AT THE TIME OF THE EFFECTIVENESS OF THIS LAW, AND, SECONDLY, WHETHER ITS TERMS ARE SO BROAD AS TO AFFECT EMPLOYMENT SITUATIONS WHERE THE BOARD, ITSELF, DOES NOT MAKE AN "APPOINTMENT" TO FILL A SUBORDINATE POSITION, BUT, RATHER, WHERE THE AGENCY'S CHIEF ADMINISTRATIVE OFFICER MAKES THE HIRING DECISION.
THE PRIMARY RULE OF STATUTORY CONSTRUCTION IS TO TRY TO DETERMINE THE INTENT OF THE LEGISLATURE IN ADOPTING A PARTICULAR STATUTORY SCHEME, AND, IF POSSIBLE, TO EFFECTUATE THAT INTENT. HESS V. EXCISE BOARD OF MCCURTAIN COUNTY, 698 P.2D 930 (OKLA. 1985). WHERE THE INTENT OF THE LEGISLATURE APPEARS PLAIN AND CLEAR ON ITS FACE, NO REAL NEED FOR FURTHER RESORT TO RULES OF STATUTORY CONSTRUCTION IS NECESSARY. IN THE MATTER OF PHILLIPS PETROLEUM CO., 652 P.2D 283, 285 (OKLA. 1982).
IN THE CASE OF THIS STATUTE, IT APPEARS QUITE PLAIN THAT WHAT THE LEGISLATURE HAS DONE IS TO PROVIDE FOR A PROSPECTIVE QUALIFICATION TO THE ABILITY OF A PERSON TO HOLD PUBLIC EMPLOYMENT, AS A MEANS OF LIMITING THE OPPORTUNITIES THAT MIGHT ARISE TO FOSTER AN IMPROPER CONFLICT OF INTEREST DEVELOPING BETWEEN A STATE AGENCY AND BOARD MEMBERS SWORN TO OVERSEE THAT AGENCY'S OPERATIONS. AS SUCH IT IS SOMEWHAT ANALOGOUS TO THE IMPOSITION OF REQUIREMENTS TO HOLD ELECTED PUBLIC OFFICE AS SET FORTH IN 26 O.S. 5-105A (1987), RECENTLY DISCUSSED IN ATTORNEY GENERAL OPINION NO. 88-048.
IN THAT OPINION, QUESTIONS WERE ASKED AS TO THE CONSTITUTIONALITY OF SECTION 26 O.S. 5-105(A) LANGUAGE PROHIBITING PERSONS WHO HAVE BEEN CONVICTED OF CERTAIN CRIMES FROM ELIGIBILITY TO RUN FOR OR HOLD PUBLIC OFFICE IN THE STATE. THE ATTORNEY GENERAL, REFERRING TO OKLAHOMA SUPREME COURT DECISIONS