RE: OKLAHOMA MENTAL HEALTH RESEARCH FOUNDATION
ATTORNEY GENERAL HENRY HAS RECEIVED YOUR REQUEST FOR LEGAL ADVICE REGARDING THE PROPRIETY OF THE CREATION AND ADMINISTRATION OF THE "OKLAHOMA MENTAL HEALTH RESEARCH INSTITUTE FOUNDATION," A PRIVATE NON-PROFIT CORPORATION, BY OFFICERS AND EMPLOYEES OF THE STATE DEPARTMENT OF MENTAL HEALTH. YOU INDICATE THAT YOUR CONCERNS ARE PRIMARILY DIRECTED TOWARD THE QUESTION OF WHETHER SUCH CREATION AND ADMINISTRATION WOULD CONSTITUTE AN UNLAWFUL CONFLICT OF INTEREST, IN THAT THE PRIMARY PURPOSE OF THE FOUNDATION IS STATED TO SEEK FUNDS FROM PUBLIC AND PRIVATE SOURCES RELATING TO MENTAL HEALTH RESEARCH. THIS PURPOSE APPEARS TO IMPACT UPON THE SPECIAL LANGUAGE FOUND IN 43A O.S. 2-105 AND 43A O.S. 2-106 (1987), AUTHORIZING THE DEPARTMENT, ITSELF, TO ENGAGE IN SUCH ACTIVITIES.
PLEASE BE ADVISED THAT THIS OFFICE CANNOT RENDER A FORMAL OPINION IN RESPONSE TO YOUR LETTER, AS SUCH A DOCUMENT MAY ONLY BE MADE WHEN PURE QUESTIONS OF LAW, WITHOUT A REVIEW OF THE SPECIFIC FACTS OF A PARTICULAR SITUATION IN MIND, CAN RESOLVE AN ISSUE. YOUR QUESTIONS ALL STEM FROM A CONCERN OF WHETHER STATE LAW WOULD BE VIOLATED BY THE CREATION AND OPERATION OF THE PARTICULAR FOUNDATION INDICATED, AND WOULD THEREFORE INHERENTLY INVOLVE QUESTIONS OF PARTICULARIZED FACTS THAT WOULD HAVE TO BE EVALUATED IN ORDER TO GIVE A CONSIDERED LEGAL OPINION.
HOWEVER, ATTORNEY GENERAL HENRY HAS AUTHORIZED ME TO PERSONALLY RESPOND TO YOU IN THE FORM OF THIS INFORMATIONAL LETTER. THE CONCERNS PRESENTED IN THIS LETTER ARE BASED SOLELY UPON A REVIEW OF THE DOCUMENTS THAT YOU HAVE TRANSMITTED TO THIS OFFICE FOR REVIEW, AND ARE PRESENTED SPECIFICALLY ACKNOWLEDGING THAT I HAVE NOT MADE ANY EFFORT TO INDEPENDENTLY VERIFY THE ACCURACY OF THESE DOCUMENTS. IN BRIEF PREFACE, I CANNOT SAY THAT THE MERE INCORPORATION OF SUCH AN ENTITY WOULD CONSTITUTE A PER SE VIOLATION OF STATE LAW REGARDING CONFLICTS OF INTEREST ON THE PART OF THE INCORPORATORS AND OFFICERS/MEMBERS WHO ARE ALSO DEPARTMENTAL OFFICERS AND EMPLOYEES. HOWEVER, IT IS ALSO MY OPINION THAT THE OPERATION AND ADMINISTRATION OF THE CORPORATION AS ENVISIONED IN THOSE DOCUMENTS WOULD QUITE LIKELY ULTIMATELY RESULT IN AN UNLAWFUL PROHIBITED CONFLICT OF INTEREST FOR THE STATE OFFICERS AND EMPLOYEES INVOLVED.
TITLE 74 O.S. 4241 (1987) STATES, IN THIS REGARD:
"NO STATE EMPLOYEE SHALL:
1. DIRECTLY OR INDIRECTLY SOLICIT OR ACCEPT ANY COMPENSATION, GIFT, LOAN, ENTERTAINMENT, FAVOR OR SERVICE GIVEN FOR THE PURPOSE OF INFLUENCING SUCH EMPLOYEE IN THE DISCHARGE OF HIS OFFICIAL DUTIES. PROVIDED, HOWEVER, THAT THIS SECTION SHALL NOT APPLY TO BONA FIDE CAMPAIGN CONTRIBUTIONS;
2. USE HIS OFFICIAL POSITION TO SOLICIT OR SECURE SPECIAL PRIVILEGES OR EXEMPTIONS FOR HIMSELF OR OTHERS, EXCEPT AS MAY BE PROVIDED BY LAW;
3. DISCLOSE OR OFFER TO DISCLOSE CONFIDENTIAL INFORMATION ACQUIRED BY REASON OF HIS OFFICIAL POSITION TO ANY PERSON, GROUP OR OTHERS NOT ENTITLED TO RECEIVE SUCH CONFIDENTIAL INFORMATION, NOR SHALL HE USE SUCH INFORMATION FOR HIS PERSONAL GAIN OR BENEFIT;
4. SELL OR OFFER TO SELL OR CAUSE TO BE SOLD, EITHER AS AN INDIVIDUAL OR THROUGH ANY BUSINESS ENTERPRISE IN WHICH