Opinion No. (1998) ( 1998 )

Dear Executive Director Cook,

¶ 0 This office has received your request for an Attorney General Opinion in which you ask, in effect, the following questions:

May the Oklahoma Tourism and Recreation Department sell and/ortransfer title of a State Park to a municipality, county, orother political subdivision of the State for a nominal amount? If not, what method is available to the Oklahoma Tourism andRecreation Department to sell, or otherwise transfer, realproperty to which it holds title?

¶ 1 Your first question asks whether the Oklahoma Tourism and Recreation Department ("Tourism") has the authority to sell or transfer the title of a State Park to a municipality, county, or other political subdivision of the State for $1.00. The answer to your question is determined by examining Tourism's statutory powers.¹

I. TOURISM'S STATUTORY POWERS

[A]n officer or agency has, by implication and in addition to the powers expressly given by statute, such powers as are necessary for the due and efficient exercise of the powers expressly granted, or such as may be fairly implied from the statute granting the express powers. However, an agency created by statute may only exercise the powers granted by statute and cannot expand those powers by its own authority.

Marley v. Cannon, 618 P.2d 401, 405 (Okla. 1980) (citations omitted).

¶ 2 The Oklahoma Tourism and Recreation Act is found at 74O.S. 1991 and Supp. 1997, §§ 1801-1892. Statutory intent is ascertained from the entire act in light of its purpose. MidwestCity v. Harris, 561 P.2d 1357, 1358 (Okla. 1977). The purpose of the Tourism and Recreation Act provides:

It shall be the purpose of the Commission and the Department to promote the development and use of the state's lodges, parks and recreational areas; promote tourism by publicity and dissemination of information; assist in promotion of events sponsored by municipalities, associations and organizations commemorating special events of local or historical interest; and function in an advisory capacity to the Governor, State Legislature, state agencies, municipalities, and to private organizations on matters pertaining to tourism and recreation.

74 Ohio St. 1991, § 1803[74-1803].

¶ 3 In light of this stated purpose, Tourism has considerable powers and duties related to recreation and tourism. For purposes of this Opinion, however, the following statutory provisions are pertinent:

The Division of Parks shall . . . [p]lan supervise, acquire, construct, enlarge, erect, improve, equip, furnish, conserve and preserve public recreation facilities and resources in state parks. . . .

74 O.S. Supp. 1997, § 1811[74-1811](1).

¶ 4 The Commission shall have and is hereby authorized to exercise the following powers, rights and privileges:

1. To have the exclusive possession and control of, and to control, operate and maintain for the benefit of the people of the State of Oklahoma all state parks and all lands and other properties now or hereafter owned or leased by the state or Commission for park or recreational purposes;

2. To acquire by purchase, lease, gift, or in any other manner and to maintain, use and operate any and all property, real, personal or mixed, necessary or convenient to the exercise of the powers, rights, privileges and functions conferred upon it by this act. . . .

. . . .

5. To acquire, construct, extend, improve, maintain and operate any and all facilities of all kinds which in the judgment of the Commission will provide recreational or other facilities for the benefit of the public, or which are necessary or convenient to the exercise of the powers of the Commission;

. . . .

10. To make such contracts and execute such instruments as in the judgment of the Commission are necessary or convenient to the exercise of the powers conferred upon it by this act[.]

74 O.S. Supp. 1997, § 1847.1[74-1847.1](A) (emphasis added).

¶ 5 As specifically stated above, Tourism has exclusive possession and control of State parks. Tourism is further authorized to make contracts and execute instruments deemed necessary by the Commission to carry out the powers granted Tourism. 74 O.S. Supp. 1997, § 1847.1[74-1847.1](A)(10).

¶ 6 Tourism does not, however, have specific statutory authority to sell or otherwise transfer State park property. Likewise, Tourism has no procedures for the disposal of park property. Under the general provisions of State law, an agency may dispose of real property pursuant to the provisions of 74O.S. Supp. 1997, § 129.4[74-129.4]. Section 129.4 requires Tourism to follow certain mandatory procedural requirements. These requirements include: receipt of three appraisals, publication of notice of sale, public auction, and a sale resulting in at least ninety percent (90%) of the appraised value. Section 129.4 provides in part:

A. Unless procedures for the disposal of real property owned by this state are otherwise provided for by law, no department, board, commission, institution, or agency of this state shall sell, exchange, or otherwise dispose of such real property subject to its jurisdiction except as provided in subsection B of this section.

B. 1. Every department, board, commission, institution, or agency, upon legislative authorization to dispose of a parcel of real property or upon a determination, in writing, by said department, board, commission, institution, or agency that a parcel of real property subject to its jurisdiction is no longer needed by said department, board, commission, institution, or agency, shall request the Department of Central Services to dispose of said property.

2. Upon notification by the department, board, commission, institution, or agency to sell a parcel of real property, the Department of Central Services shall:

a. obtain three new and complete appraisals of such property. . . .

b. cause notice of such sale to be published for at least one (1) day in a newspaper of general statewide circulation. . . .

c. offer said property through public auction or sealed bids within three (3) weeks after the last publication of the notice in said newspapers. The property shall be sold to the highest bidder. The Department of Central Services shall not accept a bid of less than ninety percent (90%) of the appraised fair value of the property and the improvements on such property. The Department of Central Services is authorized to reject all bids.

3. . . . All monies received from the sale or disposal of said property, except those monies necessary to pay the expenses incurred pursuant to this section, shall be deposited in the General Revenue Fund.

C. This section shall not be construed to authorize any department, board, commission, institution, or agency, not otherwise authorized by law, to sell, lease, or otherwise dispose of any real property owned by the state.

74 O.S. Supp. 1997, § 129.4[74-129.4].

¶ 7 Attorney General Opinion 84-86 likewise determined that land subject to the jurisdiction of Tourism may only be sold through these procedures. The law has not changed since the issuance of Attorney General Opinion 84-86.

II. TITLE 74 O.S. SUPP. 1997, § 129.4[74-129.4] PROCEDURES APPLY EVEN WHEN THE TRANSFEREE IS A MUNICIPALITY, COUNTY, OR OTHER SUBDIVISION OF THE STATE. ¶ 8 Since Tourism does not have statutory authority to dispose of real property, the only method of transfer is through 74 O.S.Supp. 1997, § 129.4[74-129.4]. III. TITLE 74 O.S. SUPP. 1997, § 129.4[74-129.4] SETS FORTH THE METHOD FOR TOURISM TO DISPOSE OF REAL PROPERTY. ¶ 9 Your second question asks what method is available to Tourism to sell or otherwise dispose of real property. Title 74O.S. Supp. 1997, § 129.4[74-129.4] set forth above provides the only method available to Tourism to transfer real property to a municipality, county, or other political subdivision of the State.

¶ 10 It is, therefore, the official Opinion of the AttorneyGeneral that: 1. The Oklahoma Tourism and Recreation Act does not set forthstatutory authority or any procedures for the Oklahoma Tourismand Recreation Department to sell or otherwise transfer title toreal property. 2. Title 74 O.S. Supp. 1997, § 129.4, which applies to allState agencies that do not have procedures to dispose of land,sets forth the method by which the Oklahoma Tourism andRecreation Department may sell, transfer, or otherwise dispose ofreal property over which it has jurisdiction to a municipality,county, or other political subdivision of the State. Theseprocedures include obtaining appraisals, causing a notice of saleto be published, a public auction, and selling the real propertyfor at least ninety percent (90%) of its appraised value. 3. Because the Oklahoma Tourism and Recreation Department doesnot have statutory authority to sell to a municipality, county orother political subdivision for a nominal amount, the question ofwhether such transfer would be constitutional is not addressed inthis Opinion.

W.A. DREW EDMONDSON ATTORNEY GENERAL OF OKLAHOMA

GRETCHEN ZUMWALT ASSISTANT ATTORNEY GENERAL

¹ Because this Opinion finds that Tourism does not have the statutory authority to sell or otherwise dispose of land for a nominal amount, this Opinion does not address the question of whether such transfer would be constitutional.