Opinion No. (1990) ( 1990 )

ATTORNEY GENERAL HENRY HAS ASKED ME TO RESPOND TO YOUR RECENT LETTER RELATING TO THE PROHIBITIONS AGAINST HIRING A FORMER LEGISLATOR FOR A POSITION IN STATE GOVERNMENT. BECAUSE I BELIEVE YOUR QUESTIONS MAY BE ANSWERED BY PREVIOUS ATTORNEY GENERAL OPINIONS, IT DOES NOT APPEAR NECESSARY TO ISSUE A FORMAL OPINION IN RESPONSE TO YOUR LETTER. IF, HOWEVER, THE FOLLOWING ADVICE DOES NOT FULLY ANSWER YOUR QUESTIONS, PLEASE LET ME KNOW.

ARTICLE V, SECTION 23 OF THE OKLAHOMA CONSTITUTION PROVIDES, IN PERTINENT PART, THAT NO MEMBER OF THE LEGISLATURE SHALL:

"DURING THE TERM FOR WHICH HE SHALL HAVE BEEN ELECTED, OR WITHIN TWO YEARS THEREAFTER, BE INTERESTED, DIRECTLY OR INDIRECTLY, IN ANY CONTRACT WITH THE STATE, OR ANY COUNTY OR OTHER SUBDIVISION THEREOF, AUTHORIZED BY LAW PASSED DURING THE TERM FOR WHICH HE SHALL HAVE BEEN ELECTED."

THIS PROHIBITION APPLIES REGARDLESS OF WHETHER THE LEGISLATOR ACTUALLY VOTED IN FAVOR OF THE CONTRACT OR POSITION AUTHORIZED DURING HIS OR HER TERM, AND REGARDLESS OF WHETHER THE LEGISLATOR RESIGNED PRIOR TO THE END OF THE TERM.

WHILE YOUR LETTER DOES NOT INDICATE THE TYPE OF POSITION INVOLVED, THE PROHIBITION DOES APPLY TO PUBLIC EMPLOYMENT CONTRACTS, INCLUDING EMPLOYMENT BY A STATE AGENCY, BUT NOT TO PUBLIC OFFICES. YOUR LETTER ASKS WHETHER THE PROHIBITION APPLIES WHERE THE POSITION WAS NOT CREATED DURING THE LEGISLATOR'S TERM OF OFFICE, BUT ITS SALARY WAS INCREASED BY VIRTUE OF A BLANKET RAISE GIVEN ALL STATE EMPLOYEES. WHILE THIS QUESTION HAS NOT, TO MY KNOWLEDGE, BEEN ADDRESSED IN ANY PREVIOUS A.G. OPINIONS, THE CRITICAL FACTOR IS LIKELY NOT THE AMOUNT OF THE SALARY NOW OR BEFORE, UNLESS IT IS STATUTORILY SET, BUT WHETHER THE POSITION IS FUNDED BY AN APPROPRIATION MADE DURING THE LEGISLATOR'S TERM. IF IT IS, THE PROHIBITION APPLIES (SEE PAGE 2 OF A.G. OPIN. NO. 87-040, ENCLOSED). IF IT IS NOT, THEN UNLESS THE SALARY IS SPECIFICALLY SET BY STATUTE, THERE WOULD APPEAR TO BE NO VIOLATION OF THE CONSTITUTIONAL PROHIBITION.

THE FOREGOING DEMONSTRATES THAT IT IS DIFFICULT TO ANALYZE THE QUESTIONS YOU ASK, AND PROVIDE YOU WITH A COMPLETE ANSWER, WITHOUT MORE INFORMATION REGARDING THE POSITION INVOLVED. HOWEVER, AS IT IS LIKELY A POSITION FUNDED THROUGH APPROPRIATIONS, THAT FACT IS ALSO LIKELY TO BE DISPOSITIVE OF YOUR QUESTIONS. IF THE POSITION IS NOT FUNDED THROUGH STATE APPROPRIATIONS, AND YOU STILL HAVE QUESTIONS ABOUT THE APPLICATION OF ARTICLE V, SECTION 23 PLEASE FEEL FREE EITHER TO CALL OR WRITE ME.

(SUSAN BRIMER LOVING)