Opinion No. (1988) ( 1988 )

RE: MUNICIPAL HOUSING AUTHORITY MEMBERSHIP REQUIREMENTS

ATTORNEY GENERAL HENRY HAS RECEIVED YOUR LETTER OF MARCH 7; 1988, ASKING FOR AN OFFICIAL OPINION ON WHETHER MUNICIPAL HOUSING AUTHORITIES CREATED AND GOVERNED BY 63 O.S. 1051-1-99 (1981), AS AMENDED, MAY HAVE MORE THAN THE FIVE (5) MEMBERS ON THEIR GOVERNING BOARDS. IN LINE WITH OUR ORAL CONVERSATION OF MARCH 15, 1988, I AM RESPONDING TO YOU ON HIS BEHALF IN THIS INFORMAL LEGAL MEMORANDUM.

MUNICIPAL HOUSING AUTHORITIES ARE AUTHORIZED UNDER THE TERMS OF THE OKLAHOMA HOUSING AUTHORITIES ACT, 63 O.S. 1051/63 O.S. 1099 (1981). SUCH AUTHORITIES ARE GOVERNED BY A BOARD OF COMMISSIONERS APPOINTED BY THE MAYOR OF THE MUNICIPALITY FOR WHICH THEY SERVE, WITH THE ADVICE AND CONSENT OF THE MUNICIPAL GOVERNING BOARD, AND SERVE TERMS OF THREE YEARS. 63 O.S. 1058 (1987). 53 O.S. 1058 PROVIDES, IN THIS VEIN, IN PERTINENT PART:

"A. WHEN A HOUSING AUTHORITY IS AUTHORIZED TO TRANSACT BUSINESS AND EXERCISE POWERS HEREUNDER, FIVE (5) PERSONS SHALL BE APPOINTED AS COMMISSIONERS OF THE AUTHORITY AS FOLLOWS:

1. IN THE CASE OF A CITY, BY THE MAYOR WITH THE ADVICE AND CONSENT OF THE GOVERNING BODY; OR

2. IN THE CASE OF A COUNTY, BY THE BOARD OF COUNTY COMMISSIONERS, AND AT LEAST ONE OF THE PERSONS SO APPOINTED SHALL BE A TENANT IN A HOUSING PROJECT UNDER THE JURISDICTION OF SUCH AUTHORITY."

THE PRIMARY RULE OF STATUTORY CONSTRUCTION IS TO TRY TO ASCERTAIN THE INTENT OF THE LEGISLATURE IN ADOPTING LEGISLATION, AND, IF POSSIBLE, TO EFFECTUATE THAT INTENT. HESS V. EXCISE BOARD OF MCCURTAIN COUNTY. 698 P.2D 930 (OKLA. 1985). A COROLLARY TO THIS RULE IS THAT PUBLIC OFFICERS IN THIS STATE GENERALLY POSSES ONLY THOSE POWERS WHICH ARE SPECIFICALLY PROVIDED FOR BY LAW OR WHICH ARE NECESSARY FOR THE DUE AND DILIGENT EXERCISE OF THE AUTHORITY EXPRESSLY GRANTED, OR SUCH AS MAY BE FAIRLY IMPLIED THEREFROM. MARLEY V. CANNON, 618 P.2D 1041 (OKLA. 1980). FURTHER, THE TERM "SHALL" ORDINARILY CARRIES WITH IT AN INTENTION THAT THE LANGUAGE SHALL BE MANDATORY, AND NOT-MERELY DIRECTORY. OKLAHOMA ALCOHOLIC BEVERAGE CONTROL BOARD V. MOSS, 509 P.2D 666 (OKLA. 1973).

UTILIZATION OF THESE WELL KNOWN RULES OF STATUTORY CONSTRUCTION COMPELS A FINDING THAT MUNICIPAL HOUSING AUTHORITIES ARE DECREED BY STATUTE AT THIS TIME TO BE GOVERNED BY FIVE-PERSON BOARDS, AND THERE DOES NOT EXIST ANY LEGAL AUTHORITY TO EXPAND THE SIZE OF SUCH BOARDS.

IT IS, THEREFORE, MY PROFESSIONAL OPINION THAT THE GOVERNING BOARD OF A MUNICIPAL HOUSING AUTHORITY MUST BE COMPRISED OF FIVE PERSONS, AND NO MORE OR LESS. PLEASE FEEL FREE TO CALL ME IF YOU HAVE ANY FURTHER QUESTIONS ABOUT THIS AREA.

(MICHAEL SCOTT FERN)