Opinion No. (1988) ( 1988 )

ON BEHALF OF THE ATTORNEY GENERAL I AM RESPONDING TO YOUR REQUEST FOR AN INFORMAL OPINION CONCERNING THE POWERS AND AUTHORITY OF THE CITY MANAGER OF SEMINOLE, OKLAHOMA, UNDER THE PROVISIONS OF THE SEMINOLE CITY CHARTER AND ANY APPLICABLE STATE LAW. YOU ASK IN EFFECT THE FOLLOWING QUESTIONS:

1. WHETHER THE CITY MANAGER CAN GRANT AN INCREASE IN SALARY TO AN APPOINTIVE CITY OFFICER, TOWIT: THE CITY CLERK, DURING THE FISCAL YEAR WITHOUT THE APPROVAL OF THE CITY COUNCIL?

2. WHETHER THE CITY MANAGER CAN TRANSFER FUNDS FROM ONE CITY DEPARTMENT TO ANOTHER WITHIN THE GENERAL FUND ON HIS AUTHORITY ALONE WITHOUT FOLLOWING THE PROCEDURE SET FORTH IN 68 O.S. 24101 (1981)?

YOU HAVE SUPPLIED US WITH A COPY OF THE SEMINOLE CITY CHARTER ADOPTED IN 1971 AND UNAMENDED SINCE. WE HAVE STUDIED THIS CHARTER AND HAVE FOUND NO AUTHORITY FOR THE CITY MANAGER TO AWARD OR GRANT SALARY INCREASES FOR APPOINTIVE OFFICERS. TO THE CONTRARY THE CHARTER IN ART. II, 2-4, PROVIDES:

APPOINTIVE OFFICERS SHALL RECEIVE SUCH COMPENSATION AS MAY BE SET BY THE MAYOR AND COUNCIL BY MOTION DULY MADE AND PASSED OR BY INCLUSION IN THE ANNUAL APPROPRIATION BILL.

IT THUS APPEARS THAT ONLY THE MAYOR AND COUNCIL MAY SET THE COMPENSATION, INCLUDING CLEARLY ANY SALARY INCREASES, FOR THE CITY CLERK AND OTHER APPOINTIVE OFFICERS EITHER BY SPECIFIC MOTION FOR SUCH OR BY INCLUSION IN THE ANNUAL APPROPRIATION BILL. THE CITY MANAGER OF SEMINOLE DOES NOT HAVE POWER OR AUTHORITY TO GRANT A SALARY INCREASE TO AN APPOINTIVE CITY OFFICER.

YOU ALSO INFORM US THAT THE CITY OF SEMINOLE HAS NOT OPTED TO COME UNDER THE MUNICIPAL BUDGET ACT (11 O.S. 17-201 (1981) ET SEQ.). IT THEREFORE MUST OPERATE IN CONFORMITY WITH OTHER STATUTORY PROVISIONS FOUND IN TITLE 68 O.S. 2482 OF THE OKLAHOMA STATUTES, MOST PARTICULARLY THOSE STARTING AT 2482, AND REQUIRING CITIES TO SUBMIT THEIR BUDGETS TO THE COUNTY EXCISE BOARD. CITY TREASURERS MAY ISSUE WARRANTS OR GIVE OTHER EVIDENCE OF INDEBTEDNESS ONLY AGAINST APPROPRIATIONS AS APPROVED BY THE EXCISE BOARD. SEE 68 O.S. 2499 (1981). WE FIND PARTICULARLY PERTINENT THAT PART OF 68 O.S. 2489(C) (1981), WHICH RELATES TO THE GENERAL FUND PORTION OF BUDGETS AND WHICH SAYS:

". . . AS TO COUNTIES, CITIES, AND TOWNS, EXCEPT AS HEREINAFTER PROVIDED, THE GOVERNMENTAL BUDGET ACCOUNT SHALL BE DEPARTMENTALIZED, AND THE APPROPRIATIONS MADE FOR THE USE OF EACH SEPARATE OFFICE, BOARD, COMMISSION, OR DEPARTMENT SHALL BE STATED IN SEPARATE ITEMS, AND NO APPROPRIATION SHALL BE AVAILABLE FOR THE USE OF MORE THAN ONE OFFICE, BOARD, COMMISSION OR DEPARTMENT; AND THE APPROPRIATIONS SO MADE FOR THE USE OF EACH SEPARATE OFFICE, BOARD, COMMISSION OR DEPARTMENT, OR FOR ANY SPECIAL FUNCTION OF EITHER OF THEM, OF THE SEVERAL MUNICIPALITIES, INCLUDING THE GENERAL FUND APPROPRIATIONS OF MUNICIPALITIES NOT SO DEPARTMENTALIZED, SHALL NOT BE INCREASED OR DIMINISHED AFTER SUCH APPROPRIATIONS BECOME FINAL, EXCEPT IN THE MANNER PROVIDED BY LAW (SECTION 68 O.S. 24101 OF THIS CODE), OR BY ORDER OF A COURT OF COMPETENT JURISDICTION." 68 O.S. 24101, OF COURSE, RELATES TO THE PROCEDURES FOR OBTAINING SUPPLEMENTAL AND ADDITIONAL APPROPRIATIONS. IN ANY EVENT, IT IS CLEAR THAT ONCE APPROPRIATIONS FOR A CITY'S ANNUAL BUDGET HAVE BEEN APPROVED BY THE COUNTY EXCISE BOARD ANY CHANGES IN SUCH APPROPRIATIONS ALSO MUST BE APPROVED BY THE EXCISE BOARD. WE HAVE FOUND NO AUTHORITY FOR THE CITY MANAGER TO CIRCUMVENT THESE STATUTES BY DINT OF ANY PROVISION OF THE SEMINOLE CITY CHARTER. WE THEREFORE CONCLUDE THAT HE IS WITHOUT AUTHORITY TO TRANSFER FUNDS FROM ONE DEPARTMENT TO ANOTHER WHEN SUCH FINDS HAVE BEEN APPROPRIATED TO DEPARTMENTS.

IN CONCLUSION AND SUMMARY THEN IT IS THE INFORMAL AND UNOFFICIAL OPINION OF THE ATTORNEY GENERAL THAT:

"1. THE CITY MANAGER OF SEMINOLE, OKLAHOMA, IS NOT AUTHORIZED OR EMPOWERED TO INCREASE THE SALARY OF AN APPOINTIVE CITY OFFICER WITHOUT THE APPROVAL OF THE MAYOR AND THE CITY COUNCIL; AND

2. THE CITY MANAGER OF SEMINOLE, OKLAHOMA, IS NOT AUTHORIZED OR EMPOWERED TO TRANSFER FUNDS DULY APPROPRIATED TO ONE CITY DEPARTMENT TO ANOTHER CITY DEPARTMENT ON HIS OWN AUTHORITY AND WITHOUT ADHERING TO THE PROCEDURES OF 68 O.S. 24101 (1981).

(HUGH H. COLLUM)