Opinion No. Ag ( 1987 )

OPINION — AG — ** PREVAILING WAGES — PUBLIC TRUST CONSTRUCTION ** (1) AN INDUSTRIAL PUBLIC TRUST CREATED PURSUANT TO 60 O.S. 176 [60-176] ET SEQ., IS A "PUBLIC BODY" FOR PURPOSES OF THE MINIMUM WAGES ON PUBLIC WORKS ACT FOUND AT 40 O.S. 196.1 [40-196.1] ET SEQ. (2) THE MINIMUM WAGES ON PUBLIC WORKS ACT ONLY APPLIES TO THE CONSTRUCTION OF "PUBLIC WORKS" AS THAT TERM IS DEFINED AT 40 O.S. 196.2 [40-196.2](7). THE CONSTITUTE SUCH A PUBLIC WORK THE FACILITY MUST BE CONSTRUCTED FOR "PUBLIC USE" WHICH MEANS THAT THE FACILITY MUST EITHER BE UNDER THE CONTROL OF THE PUBLIC TRUST OR THE FACILITY MUST BE ACCESSIBLE BY THE PUBLIC AT LARGE. WHETHER A PUBLIC USE EXISTS IS A QUESTION OF FACT. IN DETERMINING "PUBLIC USE", FACTORS MAY BE CONSIDERED SUCH AS WHETHER THE TRUST OR THE PRIVATE INDUSTRY IS RESPONSIBLE FOR OPERATING AND MAINTAINING THE FACILITY, WHETHER THE INDUSTRY LEASES THE FACILITY OR IS ACTUALLY PURCHASING THE FACILITY PURSUANT TO AN EXECUTORY CONTRACT FOR SALE, WHETHER THE TAXPAYERS ARE RESPONSIBLE FOR THE DEBT ISSUED TO FINANCE THE FACILITY AND WHETHER THE FACILITY IS OWNED BY THE PRIVATE INDUSTRY OR THE TRUST FOR STATE AND FEDERAL TAX PURPOSES. THESE FACTORS ARE NOT EXCLUSIVE. (3) THE COMMISSIONER OF LABOR HAS THE POWER TO DETERMINE THE APPLICABILITY OF THE RULES WHICH HE HAS PROMULGATED TO ENFORCE THE MINIMUM WAGES ON PUBLIC WORKS TO A GIVEN FACILITY TO BE CONSTRUCTED BY A PUBLIC BODY IN AN "INDIVIDUAL PROCEEDING" PURSUANT TO 40 O.S. 196.4 [40-196.4] AND 75 O.S. 307 [75-307] . THE LABOR COMMISSIONER WOULD THEN HAVE THE AUTHORITY TO DETERMINE IN SUCH A PROCEEDING IF A GIVEN FACILITY IS FOR A "PUBLIC USE" BY CONSIDERING SEVERAL FACTORS INCLUDING, BUT NOT LIMITED TO, THOSE IDENTIFIED IN THIS OPINION. *************** (THOMAS L. SPENCER) CITE: OPINION NO. 81-007, OPINION NO. 84-013, 75 O.S. 306 [75-306], 60 O.S. 196.1 [60-196.1], 40 O.S. 196.2 [40-196.2](7), 40 O.S. 196.4 [40-196.4], 40 O.S. 196.2 [40-196.2](6) (PREVAILING WAGE LAW, ADMINISTRATIVE PROCEDURES ACT) SEE: OPINION NO. 92-525 (1992)