Opinion No. (1988) ( 1988 )

I HAVE SPOKEN WITH NOVA COX OF THE EDMOND ASSOCIATION FOR RETARDED CITIZENS, INC. (EARC), WITH RESPECT TO THE OPERATIONS OF THAT BODY AND ITS FUNDING, IN LIGHT OF THE PROVISIONS OF THE OKLAHOMA OPEN MEETING ACT. MS. COX HAS INDICATED TO ME THAT AN INFORMAL RESPONSE TO YOUR OPINION REQUEST WILL PROBABLY SATISFY HER IMMEDIATE NEEDS, AND I AM THEREFORE RESPONDING TO YOU REQUEST WITH THE FOLLOWING INFORMAL OPINION.

IN ESSENCE, YOU ASK WHETHER THE EARC IS GOVERNED BY THE OKLAHOMA OPEN MEETING ACT, CODIFIED AT 25 Ohio St. 301 (1981) ET SEQ., AS AMENDED. AS I UNDERSTAND IT, THE EARC IS A PRIVATE NON-PROFIT CORPORATION, TAX EXEMPT UNDER THE UNITED STATES INTERNAL REVENUE CODE, CODIFIED AT26 U.S.C.A. 501(C)(3). THE EARC IS NOT CREATED BY STATUTE, NOR IS IT GOVERNED BY OKLAHOMA STATUTES EXCEPT IN SO FAR AS ANY NONPROFIT CORPORATION IS SO GOVERNED. ALL STATE AND FEDERAL FUNDS RECEIVED BY THIS ORGANIZATION ARE RECEIVED THROUGH CONTRACTS UNDER WHICH EARC PROVIDES SPECIFIC SERVICES FOR STATE AND FEDERAL AGENCIES IN RETURN FOR THOSE FUNDS. THE EARC RECEIVES APPROPRIATIONS FROM THE STATE OF OKLAHOMA.

AS YOU KNOW, THE OPEN MEETING ACT GOVERNS PUBLIC BODIES AS THAT TERM IS DEFINED WITHIN THE ACT. THE DEFINITION OF "PUBLIC BODY" IS FOUND IN 25 Ohio St. 304 (1987), WHEREIN IT IS PROVIDED THAT:

"PUBLIC BODY" MEANS THE GOVERNING BODIES OF ALL MUNICIPALITIES . . . BOARDS OF COUNTY COMMISSIONERS . . . BOARDS OF PUBLIC AND HIGHER EDUCATION . . . AND ALL BOARDS, BUREAUS, COMMISSIONS, AGENCIES, TRUSTEESHIPS, AUTHORITIES, COUNCILS, COMMITTEES, PUBLIC TRUSTS, TASK FORCES OR STUDY GROUPS IN THE STATE OF OKLAHOMA SUPPORTED IN WHOLE OR IN PART BY PUBLIC FUNDS OR ENTRUSTED WITH THE EXPENDING OF PUBLIC FUNDS, OR ADMINISTERING PUBLIC PROPERTY (.)"

WHILE THE DEFINITION OF PUBLIC BODY CONTAINS SOME EXCEPTIONS, THEY ARE NOT RELEVANT TO THIS DISCUSSION.

ALTHOUGH THE DEFINITION OF PUBLIC BODY INCLUDES SUPPORT IN WHOLE OR IN PART BY PUBLIC FUNDS, THE TYPE OF SUPPORT ADDRESSED IN THE OPEN MEETING ACT SHOULD NOT BE CONFUSED WIT THE EXPENDITURE OF PUBLIC FUNDS TO PRIVATE ORGANIZATIONS, NO MATTER HOW PUBLIC" THE PURPOSE OF THE PRIVATE ORGANIZATION MAY BE. THE MONIES PAID BY AGENCIES OF THE STATE AND FEDERAL GOVERNMENTS TO EARC ARE CONTRACTUAL IN NATURE, AND DO NOT CONSTITUTE SUPPORT OF THE ORGANIZATION, BUT RATHER A PAYMENT TO THE ORGANIZATION IN EXCHANGE FOR ITS SERVICES RENDERED IN PROVIDING THE TYPES OF ACTIVITIES AND PROGRAMS IT OFFERS. TO FIND THAT THE EARC IS SUPPORTED" BY PUBLIC FUNDS BECAUSE IT RECEIVES FUNDS WHICH WERE AT ONE TIME IN THE POSSESSION OF THE STATE, WOULD BE TO FIND THAT ANY BUSINESS OR INDIVIDUAL WHO HAS CONTRACTED TO PROVIDE GOODS OR SERVICES TO THE STATE OF OKLAHOMA IN EXCHANGE FOR PAYMENT WAS SUPPORTED BY PUBLIC FUNDS AND IS THUS SUBJECT TO THE ACT. THAT RESULT WOULD BE ABSURD ON ITS FACE.

IT WOULD THUS APPEAR, ASSUMING THE FACTS AS STATED ABOVE ARE CORRECT, THAT THE EARC IS NOT A PUBLIC BODY AS THAT TERM IS DEFINED IN THE OPEN MEETING ACT, AND IS THEREFORE NOT SUBJECT TO THE PROVISIONS OF THAT ACT. AS NOTED ABOVE, THE FOREGOING CONSTITUTES MY INFORMAL OPINION IN RESPONSE TO YOUR OPINION REQUEST.

(NON PROFIT/CHARITABLE)

(NED BASTOW)