Question Submitted by: The Honorable Arthur Hulbert, State Representative, District 14, Oklahoma Attorney General Reports, State Courts, COURT CASE

Question Submitted by: The Honorable Arthur Hulbert, State Representative, District 14
2014 OK AG 9
Decided: 09/15/2014
Oklahoma Attorney General Opinions

Cite as: 2014 OK AG 9, __ __

¶0 This office has received your request for an official Attorney General Opinion in which you ask, in effect, the following question:
Does 19 O.S.Supp.2013, § 421.2 prohibit a board of county commissioners from declaring county-owned real property as surplus to the needs of the county during the time period beginning 30 days before the filing period for any election of a county commissioner and ending the day after a county commissioner is sworn in?

Introduction

¶1 Before turning to your question, we provide a brief summary of the powers granted to a board of county commissioners under Oklahoma law regarding the administration of county-owned property.

¶2 It is well established that counties within Oklahoma are "involuntary, subordinate political subdivision[s] of the state," Herndon v. Anderson, 25 P.2d 326, 329 (Okla. 1933), that may exercise only those powers that have been granted to them by statute. Tulsa Exposition & Fair Corp. v. Bd. of Cnty. Comm'rs, 468 P.2d 501, 507 (Okla. 1970) (citing Johnston v. Conner, 236 P.2d 987 (Okla. 1951) and Herndon, 25 P.2d at 329). A county exercises its statutory authority through an elected board of county commissioners. See 19 O.S.2011, § 3. Like the counties themselves, "Boards of County Commissioners derive their powers and authority wholly from the statutes, and acts performed by them must be done pursuant to authority granted by valid legislative action." Tulsa Exposition & Fair Corp., 468 P.2d at 508. However, a board's authority also includes powers that are "necessarily or fairly implied or incidental to the powers expressly granted." See Shipp v. Se. Okla. Indus. Auth., 498 P.2d 1395, 1398 (Okla. 1972).

¶3 Among the powers specifically granted to counties by statute is a broad authority to administer property belonging to the county. For instance, counties are empowered to "purchase and hold real and personal estate for the use of the county." 19 O.S.2011, § 1(2). Similarly, counties may "sell and convey any real or personal estate owned by the county, and make such order respecting the same as may be deemed conducive to the interests of the inhabitants[.]" Id. § 1(3). As noted above, this broad authority is exercised on behalf of the county by its board of county commissioners, but county commissioners also have specific statutory authority to, among other things, "make all orders respecting the real property of the county." Id. § 339(A)(1).

¶4 In order to sell county-owned property a board of county commissioners, in most cases, must comply with the procedures set forth in Section 421.1 of Title 19. For county-owned "tools, apparatus, machinery or equipment" for which the original cost exceeded $500, the statute requires a sealed bid procedure or public auction, with limited exception for property used as a trade-in for the purchase of similar property. See 19 O.S.Supp.2013, § 421.1(A)-(F). For county-owned land, Section 421.1 authorizes county commissioners to "sell real property belonging to the county without declaring such property surplus" only after a number of conditions, including a certified appraisal and sealed bid process, have been satisfied.¹ Id. § 421.1(G).

¶5 For property that has been deemed by the board of county commissioners as surplus to the needs of the county, the Legislature established separate procedures to sell or otherwise transfer real and personal property. For surplus real property, Section 349(B) of Title 19 permits county commissioners to transfer such lands to a municipality if the lands are located within the municipality's corporate limits. That section provides, in pertinent part, as follows:

The county commissioners of counties of the State of Oklahoma are hereby authorized and empowered to execute deeds of conveyance of such lands as are owned by the counties within the corporate limits of any city or town providing such lands are deemed by the county commissioners of the county to be surplus to the needs of the county. Any such lands so conveyed may be used by such city or town for any purpose authorized by law or conveyed by such city or town in any manner authorized by law.

19 O.S.2011, § 349(B). For surplus machinery, equipment and vehicles, Section 421.2 of Title 19 permits a board, subject to certain conditions, to transfer such property to political subdivisions of the state. See 19 O.S.Supp.2013, § 421.2.

Analysis

¶6 Your question seeks clarification as to whether Section 421.2 limits the ability of county commissioners to declare county-owned real property as surplus. Section 421.2 provides, in pertinent part, as follows:

A unanimous vote of the board of county commissioners may transfer any machinery, equipment or vehicle belonging to the county, which is deemed by the board to be surplus, to a political subdivision of the state which is in need of such machinery, equipment or vehicle. Upon such transfer, the subject property shall be removed from the inventory of the county. Except as otherwise provided in this section, the board of county commissioners may not deem any property to be surplus during the period of time beginning thirty (30) days before the filing period for any election of a county commissioner and ending the day after a county commissioner is sworn in as such. If the incumbent draws no opponent or if the incumbent county commissioner wins reelection, either at the primary, special, or general election, the prohibition of declaring county property or material surplus until the swearing in of county officials shall be removed and the county may dispose of surplus property as provided in this section.

19 O.S.Supp.2013, § 421.2 (emphasis added).

¶7 To determine whether Section 421.2's temporal limitation on declaring county property as surplus applies to real property, we must look first to the language of the statute itself. If that language is "plain and unambiguous and its meaning clear," no further interpretation is necessary. TRW/Reda Pump v. Brewington, 829 P.2d 15, 20 (Okla. 1992); see also Ledbetter v. Howard, 276 P.3d 1031, 1035 (Okla. 2012) ("If the [statutory] language is plain and clearly expresses the legislative will, further inquiry is unnecessary."). However, if the language is ambiguous or in conflict with other statutory provisions, we must turn to the rules of statutory interpretation to ascertain the intent of the Legislature in adopting the law. See Ledbetter, 276 P.3d at 1035 (noting that "in cases of ambiguity or conflictrules of statutory construction [are] employed"); In re BTW, 241 P.3d 199, 205 (Okla. 2010) ("The determination of legislative intent controls statutory interpretation . . . .").

¶8 "The test for ambiguity in a statute is whether the statutory language is susceptible to more than one reasonable interpretation." YDF, Inc. v. Schlumar, Inc., 136 P.3d 656, 658 (Okla. 2006). In Section 421.2, the use of the phrase "any property" in prohibiting county commissioners from deeming county property as surplus in the time period surrounding elections renders that provision ambiguous. Specifically, the use of the word "any" can be interpreted to suggest that the prohibition applies to all county-owned property, including real property. See Webster's Third New International Dictionary 97 (1993) (defining "any" to mean, among other things, "every" or "all"); see also JPMorgan Chase Bank, N.A. v. Specialty Rest., Inc., 243 P.3d 8, 14 (Okla. 2010) ("The term 'any' is all-embracing and means nothing less than 'every' and 'all.'"). On the other hand, the prohibition appears in a statutory section that otherwise appears to apply only to county-owned machinery, equipment and vehicles. Indeed, the transfer of surplus county-owned real property is specifically addressed by separate statute. See 19 O.S.2011, § 349. Having found the language to be ambiguous, we look to the relevant rules of statutory construction to determine the most reasonable interpretation.

¶9 For two reasons, we conclude that the better reading of Section 421.2 is that the temporal prohibition on declaring county property as surplus applies only to machinery, equipment and vehicles. First, the interpretation of ambiguous language cannot be accomplished in a vacuum. Rather, we must take into account the relevant context in which the language is used. See Hogg v. Okla. Cnty. Juvenile Bureau, 292 P.3d 29, 33 (Okla. 2012) ("In determining legislative intent this Court will look at the context of any ambiguous provisions and not limit our consideration to any one word or phrase."); State v. Tate, 276 P.3d 1017, 1020 (Okla. 2012) ("Words and phrases of a statute are to be understood and used not in an abstract sense, but with due regard for context, and they must harmonize with other sections of the Act."). Taking the whole of Section 421.2 in context, it makes more sense that the limitation stated therein would apply only to the types of property referenced specifically in that section. The first two sentences of that section refer solely to the transfer of county-owned machinery, equipment and vehicles. 19 O.S.Supp.2013, § 421.2. Likewise, the statute identifies circumstances that would cause the prohibition on declaring property as surplus to be lifted and permit the county to "dispose of surplus property as provided in this section." Id. (emphasis added). Of course, Section 421.2 provides only for the disposal of surplus machinery, equipment and vehicles. Thus, in the otherwise narrow context of Section 421.2, it would be an odd juxtaposition to insert a broad temporal limitation on declaring any county property as surplus.²

¶10 The second, and related, reason supporting this conclusion involves a broader review of Title 19. Specifically, the transfer of surplus county lands is explicitly addressed in a separate section of Title 19. Section 349(B) permits county commissioners to convey surplus land to municipalities, much like Section 421.2 permits such transfers for machinery, equipment and vehicles. See 19 O.S.2011, § 349(B). Unlike Section 421.2, however, Section 349(B) does not include any temporal limitation on the authority of a board of county commissioners to declare such property as surplus. Section 349(B) was adopted in 1990, see 1990 Okla. Sess. Laws ch. 67, § 2, one year prior to the adoption of Section 421.2. See 1991 Okla. Sess. Laws ch. 155. We must assume that, at the time it enacted Section 421.2, the Legislature was aware that the transfer of surplus county-owned real property was addressed specifically in Section 349(B). See Williams v. Bailey, 268 P.2d 868, 872 (Okla. 1954) (noting the "general rule of interpretation to assume that the legislature in the enactment of a statute was aware of established rules of law applicable to the subject matter of the statute" (quoting 50 Am. Jur. Statutes § 339)); see also State ex rel. Dep't of Transp. v. OPUBCO, Inc., 50 P.3d 1146, 1149 (Okla. Civ. App. 2002). Yet the Legislature chose not to amend Section 349(B) to include a temporal limitation on declaring real property as surplus, but included such a limitation in Section 421.2, applicable to applicable to machinery, equipment and vehicles. We assume that this omission is intentional. See Broadway Clinic v. Liberty Mut. Ins. Co., 139 P.3d 873, 877 (Okla. 2006) ("Where a word or phrase is absent from a statute, we must presume that its absence is intentional."); see also OPUBCO, 50 P.3d at 1149 ("Legislative silence, when it has authority to speak, may be considered as giving rise to an implication of legislative intent." (quoting City of Duncan v. Bingham, 394 P.2d 456, 460 (Okla. 1964))).

¶11 It is, therefore, the official Opinion of the Attorney General that:

Title 19 O.S.Supp.2013, § 421.2 does not prohibit a board of county commissioners from declaring county-owned real property as surplus to the needs of the county during the time period beginning 30 days before the filing period for any election of a county commissioner and ending the day after a county commissioner is sworn in.

E. SCOTT PRUITT
Attorney General of Oklahoma

Ethan Shaner
Assistant Attorney General

FOOTNOTES

¹ In other limited circumstances not relevant here, a board of county commissioners may sell or otherwise transfer real property belonging to the county without declaring it surplus or complying with the procedures of Section 421.1(G). See 19 O.S.2011, §§ 339.1, 342, 349(C).

² This conclusion is also consistent with the doctrine of noscitur a sociis, by which the meaning of an ambiguous term used in a statute may be ascertained by reference to the meaning of words associated with it. See Sullins v. Am. Med. Response of Okla., Inc., 23 P.3d 259, 263 (Okla. 2001); see also 2A Norman J. Singer, Sutherland Statutory Construction § 47.16 at 352-53 (7th ed. 2007) (noting that noscitur a sociis "in practical application means that a word may be defined by an accompanying word, and ordinarily the coupling of words denotes an intention that they should be understood in the same general sense" (footnotes omitted)).

Cite	Name	Level
None Found.

Citationizer: Table of Authority

Cite	Name	Level
Oklahoma Court of Civil Appeals Cases
	Cite	Name	Level
	2002 OK CIV APP 72, 50 P.3d 1146,	STATE EX. REL. DEPT. OF TRANSPORTATION v. OPUBCO, INC.	Cited
Oklahoma Supreme Court Cases
	Cite	Name	Level
	1992 OK 31, 829 P.2d 15, 63 OBJ 682,	TRW/Reda Pump v. Brewington	Cited
	2001 OK 20, 23 P.3d 259, 72 OBJ 573,	SULLIN v. AMERICAN MEDICAL RESPONSE OF OKLAHOMA, INC	Cited
	1954 OK 19, 268 P.2d 868,	WILLIAMS v. BAILEY	Cited
	1933 OK 490, 25 P.2d 326, 165 Okla. 104,	HERNDON Judge v. ANDERSON et al.	Cited
	1964 OK 165, 394 P.2d 456,	CITY OF DUNCAN v. BINGHAM	Cited
	1970 OK 67, 468 P.2d 501,	TULSA EXPOSITION & FAIR CORP. v. BD. OF CO. COM'RS	Cited
	1972 OK 98, 498 P.2d 1395,	SHIPP v. SOUTHEASTERN OKLAHOMA INDUSTRIES AUTH.	Cited
	2006 OK 29, 139 P.3d 873,	BROADWAY CLINIC v. LIBERTY MUTUAL INSURANCE CO.	Cited
	2006 OK 32, 136 P.3d 656,	YDF, INC. v. SCHLUMAR, INC.	Cited
	2010 OK 65, 243 P.3d 8,	JPMORGAN CHASE BANK, N.A. v. SPECIALTY RESTAURANTS, INC.	Cited
	2010 OK 69, 241 P.3d 199,	IN THE MATTER OF BTW	Cited
	2012 OK 31, 276 P.3d 1017,	STATE v. TATE	Cited
	2012 OK 39, 276 P.3d 1031,	LEDBETTER v. HOWARD	Cited
	2012 OK 107, 292 P.3d 29,	HOGG v. OKLAHOMA COUNTY JUVENILE BUREAU	Cited
	1951 OK 262, 236 P.2d 987, 205 Okla. 233,	JOHNSTON v. CONNER	Cited
Title 19. Counties and County Officers
	Cite	Name	Level
	19 O.S. 349,	Conveyance of Lands to United States or Cities and Towns for Forest and Game Preserves, Parks, etc.	Discussed at Length
	19 O.S. 1,	Organized Counties to be Empowered for the Following Purposes	Cited
	19 O.S. 3,	County's Powers Exercised by Board of Commissioners - Certain Contracts Void by Individual Commissioner	Cited
	19 O.S. 339.1,	Sale of County-Owned Property to Oklahoma Historical Society	Cited
	19 O.S. 421.1,	Procedures for Sale of Certain County Property	Cited
	19 O.S. 421.2,	Transfer of Surplus Machinery, Equipment, or Vehicles	Discussed at Length

Question Submitted by: The Honorable Arthur Hulbert, State Representative, District 14 , 2014 OK AG 9 ( 2014 )

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