Opinion No. (1989) ( 1989 )

ATTORNEY GENERAL HENRY HAS ASKED ME TO RESPOND TO YOUR RECENT LETTER ASKING THIS OFFICE TO REVIEW THE ADVICE PREVIOUSLY GIVEN BY ASSISTANT ATTORNEY GENERAL COLLUM IN REGARD TO THE PENSION COMMISSION'S AUTHORITY TO SUBSTANTIALLY INCREASE THE DUTIES AND COMPENSATION OF ITS CONSULTANT. I HAVE REVIEWED YOUR PRIOR REQUEST FOR A MEMORANDUM OPINION AND THE LAW APPLICABLE THERETO. I SHARE THE VIEWS EXPRESSED BY ASSISTANT ATTORNEY GENERAL COLLUM IN HIS MEMORANDUM TO YOU DATED SEPTEMBER 19, 1989; IN FACT, MR. COLLUM CONFERRED WITH OTHER MEMBERS OF THE ATTORNEY GENERAL'S STAFF BEFORE ISSUING THAT MEMORANDUM. IT APPEARS THAT THAT THERE IS NO NEED TO ISSUE A FORMAL OPINION OF THE ATTORNEY GENERAL BECAUSE YOUR QUESTION IS READILY ANSWERED BY REFERENCE TO EXISTING AND CLEAR LEGAL STANDARDS.

THE LANGUAGE OF THE STATUTE THAT SAYS THAT THE COMMISSION "SHALL HIRE" ONE OR MORE CONSULTANTS DOES NOT CHANGE THE COMMISSION'S CONTRACT WITH ITS PRESENT CONSULTANT TO SOMETHING OTHER THAN A COMPETITIVELY BID CONTRACT WHEN THE STATUTE IS READ AS A WHOLE. THE IMPLICATIONS OF A REQUIREMENT OF COMPETITIVE BIDDING INCLUDE, OF COURSE, ONE THAT THERE BE NO SUBSTANTIAL CHANGES IN THE TERMS OF THE CONTRACT, INCLUDING THE COMPENSATION THEREFOR. COMPARE, 61 O.S. 121 (1981), WHICH LIMITS CHANGE ORDERS OR ADDENDA TO 15% OF THE CONTRACT PRICE (IF LESS THAN $1,000,000) OR 10% (IF MORE THAN $1,000,000). (THIS STATUTE, ALTHOUGH NOT CONTROLLING HERE, IS PERSUASIVE INSOFAR AS IT ILLUSTRATES THE PRINCIPLES OF "SUBSTANTIAL" CHANGE).

THE COMMISSION'S RELIANCE ON THE PRINCIPLE OF DEFERENCE TO ITS ADMINISTRATIVE CONSTRUCTION OF ITS OWN STATUTES IS MISPLACED IN THIS INSTANCE. THAT RULE OF LAW IS OPERATIVE WHEN AN AGENCY APPLIES STATUTORY STANDARDS CONFERRED TO ITS SPECIALIZED EXPERTISE, TULSA AREA HOSPITAL COUNSEL V. ORAL ROBERTS, 626 P.2D 316, 320 (OKL. 1980), NOT WHEN IT CONSTRUES MISCELLANEOUS STATUTES ENACTED TO ASSIST IT IN PERFORMING ITS DUTIES.

SHOULD THE COMMISSION REQUIRE FLEXIBILITY BEYOND THAT PROVIDED BY THE COMPETITIVE BIDDING ACT, IT WOULD BE WELL ADVISED TO SEEK REMEDIAL LEGISLATION. I HOPE THAT THIS LETTER IS SUFFICIENTLY RESPONSIVE TO YOUR QUESTION. IF YOU HAVE FURTHER QUESTIONS ABOUT THIS MATTER, PLEASE DO NOT HESITATE TO CONTACT ME.

(NED BASTOW)