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Question Submitted by: The Honorable Wade Roussellot, State Representative, District 12 , 2014 OK AG 5 ( 2014 )


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    Question Submitted by: The Honorable Wade Roussellot, State Representative, District 12
    2014 OK AG 5
    Decided: 04/11/2014
    Oklahoma Attorney General Opinions

    Cite as: 2014 OK AG 5, __ __

    ¶0 This office has received your request for an official Attorney General Opinion in which you ask, in effect, the following questions:
    1. Is a board of county commissioners under a legal duty to supply fire protection coverage to unincorporated areas of the county that are not currently receiving fire protection services?
    2. Is a board of county commissioners financially liable for not supplying fire protection coverage to unincorporated areas of the county that are not currently receiving fire protection services?

    I.

    Boards of County Commissioners Possess Discretionary Legal Authority to Provide Fire Protection Services in the County.

    ¶1 A board of county commissioners derives its power and authority from statutes, and acts performed by the board must be done pursuant to statutory authority. Tulsa Exposition & Fair Corp. v. Bd. of County Comm'rs, 468 P.2d 501, 508 (Okla. 1970). Powers conferred upon a board of county commissioners must be exercised in the manner provided by law. Id. Unambiguous statutes granting this authority are accorded the effect of the plain ordinary meaning of the words used. State ex rel. Okla. Firefighters Pension & Ret. Sys. v. City of Spencer, 237 P.3d 125, 132 (Okla. 2009).

    ¶2 Boards of county commissioners are expressly and unambiguously authorized by statute to provide fire protection services in each county:

    A The board of county commissioners of each county of this state is hereby authorized to provide firefighting service in the county and for such purpose to use county funds to rent, lease or purchase firefighting equipment and to rent or construct and equip and operate fire stations and to employ necessary personnel to provide such service. The board of county commissioners shall also have the authority to determine and collect charges for firefighting services performed by the county from any person to whom such services are provided.

    19 O.S.2011, § 351(A) (emphasis added).1 It should first be observed that by its terms, Section 351(A) does not confine the authority of a board of county commissioners to provide fire protection services to only those areas within unincorporated areas of the county, but instead authorizes the provision of such services "in the county." Accordingly, a board of county commissioners may provide such services anywhere in the county including incorporated areas.

    ¶3 It is also notable that the foregoing provision is stated in a manner that is permissive, not mandatory. Unambiguous statutes are to be understood according to the plain ordinary meaning of the words used in the statute. Hubbard v. Kaiser-Francis Oil Co., 256 P.3d 69, 72 (Okla. 2011). Section 351(A) states that boards of county commissioners are "authorized" to provide fire protection services in the county. To "authorize" means:

    1. To grant authority or power to. 2. To approve or give permission for sanction: authorize a highway project. 3. To be sufficient grounds for; justify.

    American Heritage Dictionary 142 (2nd Coll. ed.) . In construing the word "authorized" within other statutes, courts have understood it to confer discretionary authority or permission: "The term 'authorized' . . . does not mean 'mandatorily directed' . . . . It is synonymous with the word empowered . . . ." Morgan v. Wilson, 450 P.2d 902, 903-04 (Okla. 1969) (citation omitted) (holding that the Legislature's use of "authorized" in 11 O.S.Supp.1963, § 541a provided a municipality legal authority to set up a pension and retirement plan "if it is so inclined," id., but not a legal duty to do so). See also Kroth v. City of Okla. City, 990 P.2d 906, 908-09 (Okla. Civ. App. 1999) (construing the use of "authorized" under 85 O.S.Supp.1998, § 3(6) to not mean "mandatorily directed," but to mean "empowered," such that a police officer agreeing to accept a citizen's offer of aid in taking a suspect into custody transformed the citizen into a "voluntary worker" for the city under the Workers Compensation Act such that injuries to the citizen incurring in the course of such assistance were compensable); Hullum v. R. J. Edwards, Inc., 103 P.2d 527, 529 (Okla. 1940) (holding that the use of "authorized" in 62 O.S.Supp.1933, § 431, did not mean a town was "mandatorily directed" to provide for a special tax levy for the payment of matured bonds that could not be paid from an underfunded sinking fund, as opposed to undertaking other funding options such as voluntarily paying the bonds from other available monies or permitting a judgment be entered thereon and enforced). Since the authority conferred on a board of county commissioners under 19 O.S.2011, § 351(A) is permissive rather than mandatory in nature, a board of county commissioners possesses lawful discretion to either provide or not provide fire protection services "in the county." Compare Morgan, 450 P.2d at 903-04 (holding the use of the term "authorized" does not mandate a legal duty), with 19 O.S.2011, § 351(A) (using the term "authorized"). Consequently a board of county commissioners is not mandated by law to provide fire protection services in the county.

    ¶4 That a board of county commissioners is authorized but not required under Section 351(A) to provide fire protection services throughout the county is also seen in subsection D of Section 351. That section authorizes a board of county commissioners under certain defined circumstances to organize a county fire department serving certain specific territory according to defined borders2 as a separate entity that is not supervised by the board of county commissioners, but is supervised by a separate board of directors. 19 O.S.2011, § 351(D).3

    ¶5 While the county may provide fire protection services through a county fire department anywhere "in the county," implicit within Section 351(A)'s permissive grant of authority to provide such services is a legislative recognition that a board of county commissioners need not duplicate fire protection services provided by other legal entities within the county. In this regard, all municipalities located "in the county" are also authorized to provide fire protection services both within and outside of their incorporated areas. 11 O.S.2011, § 29-105(1), (2), (6). Other statutes authorize the organization and operation of charitable corporations to provide fire protection services within unincorporated areas of a county. See 18 O.S.2011, §§ 592 - 594. Additionally, where organized, a fire protection district is a separate political subdivision. 19 O.S.2011, § 901.7(B). Fire protection districts are distinct from county fire departments4 and are organized to provide fire protection services within the defined territory of the fire protection district. 19 O.S.2011, § 901.2. Fire protection districts may contract on a fiscal year basis with municipalities to provide fire protection services for the municipality, id. § 901.25(A), and may contract with others to supply fire protection services to persons and property located outside of the boundaries of the fire protection district. Id. § 901.25(B).

    ¶6 In addition to its general authority to provide fire protection services through a county fire department as provided by 19 O.S.2011, § 351(A), boards of county commissioners also have specific legal authority to contract with municipalities to provide fire protection services to persons and property not located within the corporate limits of a municipality, and to pay for such services from available monies in the county's general fund5 or the county highway fund. 19 O.S.2011, § 351.1.6 A board of county commissioners may also enter into reciprocal agreements with other counties to provide fire protection services within the others' respective territories. Id. Similarly, a board of county commissioners may contract with a fire protection corporation or a fire protection district7 to provide fire protection services within unincorporated areas of the county and pay for such services from available funds in the county general fund or county highway fund. 19 O.S.2011, § 351.3. However, the legal authority of a municipality, a charitable corporation or a fire protection district to provide fire protection services to persons or property located outside of the entity's regular service boundaries is not dependent upon any agreement with the board of county commissioners.

    ¶7 In summary, the Legislature has granted discretionary legal authority to boards of county commissioners to directly organize county fire departments for the purpose of providing fire protection services either "in the county," see 19 O.S.2011, § 351(A), or within certain defined areas. See id. § 351(D). The Legislature has also conferred discretionary legal authority on boards of county commissioners to provide fire protection services in unincorporated areas of the county through contracts for such services with municipalities, see id. § 351.1, with corporations organized to provide fire protection services, see id. § 351.3, and with existing fires protection districts. Id. Though it has discretionary authority to provide fire protection services in the county, a board of county commissioners is not under an affirmative legal duty to provide such services, and may defer the provision of such services to other legal entities providing fire protection services in the county. Accordingly, as the legal authority conferred on boards of county commissioners is permissive rather than mandatory, a board of county commissioners has discretion to determine as a matter of policy whether, when, how, and where within the county to provide fire protection services.

    II.

    A Board of County Commissioners is Immune From Liability for the Exercise of its Discretion not to Provide Fire Protection Services.

    ¶8 As shown above, a board of county commissioners has discretionary authority to provide, or not provide, fire protection services in part or the whole of the county. Your second question involves the financial liability that accrues from exercising that discretion.

    ¶9 By enacting the Governmental Tort Claims Act ("Tort Claims Act"), see 51 O.S.2011 & Supp.2013, §§ 151 - 172, the Legislature statutorily established the doctrine of sovereign immunity in Oklahoma in favor of the State and its political subdivisions, together with its officers and employees acting within the scope of their official duties, making them immune from liability for torts committed by them. 51 O.S.2011, § 152.1(A). Counties are included within the meaning of "political subdivisions" in the Tort Claims Act. Id. § 152(11)(c).

    ¶10 In the same legislation, the Legislature waived the liability protection of sovereign immunity for such torts for the State and its political subdivisions only, (id. §§ 152.1(B); 153) except for certain specific exemptions from that waiver. 51 O.S.Supp.2013, § 155.8 As observed by the Oklahoma Supreme Court:

    The general waiver [of sovereign immunity] is not an infinite blue sky. The scope of liability is limited in § 153 of the Act to torts committed within the scope of employment where private persons or entities would be liable under the laws of this state and is subject to other limitations and exceptions specified in the Act. Thirty carefully enumerated exemptions from liability are provided in 51 O.S.Supp.1989, § 155.

    Nguyen v. State, 788 P.2d 962, 964 (Okla. 1990).9 Section 155 provides in relevant part:

    The state or a political subdivision shall not be liable if a loss or claim results from:

    . . . .

    4. Adoption or enforcement of or failure to adopt or enforce a law, whether valid or invalid, including, but not limited to, any statute, charter provision, ordinance, resolution, rule, regulation or written policy;

    5. Performance of or the failure to exercise or perform any act or service which is in the discretion of the state or political subdivision or its employees;

    6. Civil disobedience, riot, insurrection or rebellion or the failure to provide, or the method of providing, police, law enforcement or fire protection;

    . . . .

    18. An act or omission of an independent contractor or consultant or his or her employees, agents, subcontractors or suppliers or of a person other than an employee of the state or political subdivision at the time the act or omission occurred[.]

    51 O.S.Supp.2013, § 155.

    ¶11 The Supreme Court of Oklahoma has ruled that Section 155(5)'s discretionary function exception to the general waiver of sovereign immunity under the Tort Claims Act is not as unlimited as the text appears to suggest:

    From the outset we note that the discretionary function exemption from governmental tort liability is extremely limited. Robinson v. City of Bartlesville Bd. of Educ., 700 P.2d 1013 (Okl.1985). This is so because a broad interpretation would completely eradicate the government's general waiver of immunity. Almost all acts of government employees involve some element of choice and judgment and would thus result in immunity if the discretionary exemption is not narrowly construed. Just as the waiver is not a blue sky of limitless liability, the discretionary exemption is not a black hole enveloping the waiver.

    Nguyen, 788 P.2d at 964 (footnote omitted). In view of the foregoing concern, the Oklahoma Supreme Court chose to adopt a "planning-operational" approach to understanding the scope of Section 155(5)'s discretionary exemption from Oklahoma's general waiver of sovereign immunity:

    The majority approach under the Federal Tort Claims Act (FTCA) and similar state acts is the planning-operational approach. This approach is in accord with Robinson, at 1017. Under this approach initial policy level or planning decisions are considered discretionary and hence immune, whereas operational level decisions made in the performance of policy are considered ministerial and not exempt from liability.

    Id. at 964-65 (footnotes omitted).10

    ¶12 The Oklahoma Supreme Court has similarly narrowly construed the exemption found in Section 155(6) to also reflect the planning-operational approach:

    Exemptions 4, 5, and 6, when read together with this Court's explanations, define clearly the scope of statutory immunity concerning law enforcement. The State and its political subdivisions enjoy immunity for the choice to adopt or enforce a law, the formulation of law enforcement policy, and the method by which policy is implemented. The exemptions do not apply to tortious acts of government servants in the daily implementation of policy. The blanket immunity the State seeks concerning police pursuits does not exist in Oklahoma's statutory law or jurisprudence.

    State ex rel. Dep't of Pub. Safety v. Gurich, 238 P.3d 1, 4 (Okla. 2010).

    ¶13 Should a board of county commissioners choose to contract with a municipality, a charitable corporation, or a fire protection district to provide fire protection services in the county, such legal entities, being legally distinct from the county, would be independent contractors. Absent any reservation by the board of county commissioners of the right to direct or supervise the provision of such services, the county would be financially exempt from any torts committed by such independent contractors. See 51 O.S.Supp.2013, § 155(18).

    ¶14 In summary, under the "planning-operational approach" set forth above, the policy decision of a board of county commissioners expressing its lawful discretion to either provide or not provide fire protection services directly, pursuant to the provisions of 19 O.S.2011, § 351, or by contracting for such services pursuant to the authority of 19 O.S.2011, §§ 351.1, 351.3, would be protected by sovereign immunity from claims for financial liability pursuant to the exemption from its waiver provided by 51 O.S.Supp.2013, § 155(4), (5), (6). Accordingly, a policy decision by a board of county commissioners not to provide fire protection services in a portion of an unincorporated area of the county not currently receiving fire protection services would, under Section 155(5), be immune from financial liability. See Carlson, 884 P.2d at 1211 (an entity that is given discretionary authority to provide services at different levels is provided immunity to determine as a matter of policy the level of services it is willing to provide). On the other hand, if a board of county commissioners decides to directly provide fire protection services in a portion of an unincorporated area of the county not currently receiving fire protection services, the actual provision of fire protection services might not be exempt under Section 155(5) if such services, in fact, are not provided or if they, in fact, are negligently provided. See Robinson, 700 P.2d at 1017 (once an entity exercises its discretion to perform an act, it is liable for harm caused by negligence committed by it in the performance of the act).

    ¶15 A decision by a board of county commissioners to contract with a municipality, a charitable corporation, or a fire protection district to provide fire protection services in a portion of an unincorporated area of the county not currently receiving fire protection services in lieu of the county directly providing fire protection services, is likewise immune from financial liability pursuant to Section 155(5). The county is also immune from liability pursuant to Section 155(18) for any torts committed by a legal entity contracting to perform the fire protection services for the county, to the extent the contracting legal entity is shown to be an independent contractor.

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

    1. A board of county commissioners has discretionary authority to provide fire protection services in the county, either directly or through contracts, but is not under an affirmative legal duty to provide such services. See 19 O.S.2011, §§ 351, 351.1, 351.3.

    2. The legal authority conferred on boards of county commissioners to provide fire protection services in the county is permissive, rather than mandatory, and boards of county commissioners have discretion to determine as a matter of policy whether, when, how, and where within the county to provide fire protection services.

    3. When a policy decision is made by a board of county commissioners to directly provide or not provide fire protection services in an unincorporated area of the county not currently receiving fire protection services the county is protected by sovereign immunity. See 51 O.S.2011, § 155(4), (5), (6); Nguyen v. State, 788 P.2d 962, 964-65 (Okla. 1990), State ex rel. Dep't of Pub. Safety v. Gurich, 238 P.3d 1, 4 (Okla. 2010).

    4. When a policy decision is made by a board of county commissioners to directly provide fire protection services in an unincorporated area of the county not currently receiving fire protection services, any torts committed in operationally carrying out that policy are not shielded from financial liability by sovereign immunity. See Nguyen, 788 P.2d at 964-65; State ex rel. Dep't of Pub. Safety, 238 P.3d at 4.

    5. When a policy decision is made by a board of county commissioners to not directly provide fire protection services in an unincorporated area of the county not currently receiving fire protection services, but instead to contract with a municipality, charitable corporation, or a fire protection district to provide such fire protection services in such area, the county is protected from financial liability by sovereign immunity. See 51 O.S.2011, § 155(5); Nguyen, 788 P.2d at 964-65; State ex rel. Dep't of Pub. Safety, 238 P.3d at 4.

    6. When a policy decision is made by a board of county commissioners to not directly provide fire protection services in an unincorporated area of the county not currently receiving fire protection services, but instead to contract with a municipality, charitable corporation, or a fire protection district to provide such fire protection services in such area, the county is immune from any torts operationally committed by the contracting entity if the contracting entity is found to be an independent contractor. 51 O.S.Supp.2013, § 155(18).

    E. SCOTT PRUITT
    Attorney General of Oklahoma

    CHARLES S. ROGERS
    Senior Assistant Attorney General

    FOOTNOTES

    1 In addition to the general authority to provide fire protection services in the county, boards of county commissioners are also authorized to acquire real property for right-of- ways and easements needed for the construction of roads and the installation of dry hydrants required for fire protection services, and to use county funds and equipment for such purposes. 19 O.S.2011, § 351(B). Additionally, boards of county commissioners are authorized, upon request, to use county personnel and county equipment to fight fires where an emergency is deemed to exist. Id. § 351(C).

    2 The rural territory served by a rural fire department organized under subsection D must be contiguous within its boundaries; it may not exclude unincorporated, rural areas that are completely surrounded by territory otherwise included within the boundaries to be served. See 19 O.S.2011, § 351(D)(1).

    3 The permissive authority of a board of county commissioners found in Section 351 to provide fire protection services "in the county" must be distinguished from the mandatory duty of county road workers to fight and control fires located in the right of way of county roads. See 2 O.S.2011, § 16-22, providing:

    Every member of a road construction or maintenance crew, whether employed by the State Highway Department or county commissioners of any county, and every road contractor or subcontractor of the Highway Department or county commissioners and their employees shall keep all fires under control and confined to the right-of-way of any state, county or public road, or highway on and adjacent to which the crew, contractor, subcontractor, and employees are employed.

    Id. (emphasis added). Use of the word "shall" is generally understood to be expressive of a command equivalent to the use of the word "must." See State ex. rel. Macy v. Freeman, 814 P.2d 147, 153 (Okla. 1991). Willful refusal, failure, or neglect to perform this specific duty is a misdemeanor. See 2 O.S.2011, § 16-24.

    4 Fire protection districts are expressly excluded from the statutes pertaining to county fire departments. See 19 O.S.2011, § 351.2. See also Pub. Serv. Co. v. Nw. Rogers Co. Fire Prot. Dist., 675 P.2d 134, 137 (Okla. 1983) (finding that counties have no substantial power over nor responsibility for fire protection districts, and such districts are not "county corporations").

    5 Funds that may be available in the county's general fund may include both sales tax revenues as levied and approved by the voters (68 O.S.2011, § 1370(A)), and ad valorem tax revenues or other monies lawfully appropriated to the fund. See, c.f., A.G. Opin. 96-70, at 148.

    6 A.G. Opin. 80-15, at 28, concluding in part that county highway funds could not be used to fund fire protection contracts with a municipality, has been superceded by a subsequent amendment to 19 O.S.2011, § 351.1, that now specifically authorizes the such use of such funds and is hereby withdrawn as to that conclusion.

    7 A.G. Opin. 82-251, at 382-83, concluding in part that counties could not appropriate monies to a fire protection district for fire protection services, has been superceded by the subsequent enactment of 19 O.S.2011, § 351.3 and is hereby formally withdrawn. See also A.G. Opin. 96-70, at 149-50 (finding specific legal authority for counties to contract with fire protection districts for fire protection services).

    8 Limits on the extent of the waiver of financial liability for harms caused by tort are set forth in 51 O.S.2011, § 154.

    9 Section 155's list of exemptions to the general waiver of sovereign immunity has grown from 30 to 37 since the court issued its opinion in Nguyen. See 51 O.S.Supp.2013, § 155.

    10 Other cases applying this approach are Robinson v. City of Bartlesville Board of Education, 700 P.2d 1013, 1017 (Okla. 1985) (holding that the negligent maintenance of a parking lot operated by the Board of Education was an operational level decision and not exempt from liability) and Carlson v. City of Broken Arrow, 884 P.2d 1209, 1212 (Okla. Civ. App. 1994) (affirming the dismissal of a widow's claim that her husband would have survived a heart attack but for inadequate care available in the city's Level I ambulance, holding that the City of Broken Arrow's decision to provide Level I ambulance care instead of Level IV ambulance care was a policy decision that exempted the city from liability). The Legislature appears to have acceded to the Oklahoma Supreme Court's interpretation of Section 155(5) since it has not since chosen to amend Section 155(5) to broaden the exemption.

    Citationizer© Summary of Documents Citing This Document
    Cite Name Level
    None Found.
    Citationizer: Table of Authority
    Cite Name Level
    Oklahoma Court of Civil Appeals Cases
     CiteNameLevel
     1994 OK CIV APP 119, 884 P.2d 1209, 65 OBJ 3926, Carlson v. City of Broken ArrowCited
     1999 OK CIV APP 97, 990 P.2d 906, 70 OBJ 3481, Kroth v. City of Oklahoma CityCited
    Oklahoma Supreme Court Cases
     CiteNameLevel
     1940 OK 299, 103 P.2d 527, 187 Okla. 408, HULLUM v. R. J. EDWARDS Inc.Cited
     1990 OK 21, 788 P.2d 962, 61 OBJ 674, Nguyen v. StateDiscussed
     1991 OK 59, 814 P.2d 147, 62 OBJ 2013, State ex rel. Macy v. FreemanCited
     1969 OK 31, 450 P.2d 902, MORGAN v. WILSONCited
     1970 OK 67, 468 P.2d 501, TULSA EXPOSITION & FAIR CORP. v. BD. OF CO. COM'RSCited
     2009 OK 73, 237 P.3d 125, STATE ex rel. OKLA. FIREFIGHTERS PENSION AND RETIREMENT SYSTEM v. CITY OF SPENCERCited
     2010 OK 56, 238 P.3d 1, STATE ex rel. OKLAHOMA DEPT. OF PUBLIC SAFETY v. GURICHDiscussed
     2011 OK 50, 256 P.3d 69, HUBBARD v. KAISER-FRANCIS OIL COMPANYCited
     1983 OK 96, 675 P.2d 134, Public Service Co. of Oklahoma v. Northwest Rogers County Fire Protection Dist.Cited
     1985 OK 39, 700 P.2d 1013, 56 OBJ 1143, Robinson v. City of Bartlesville Bd. of Educ.Discussed
    Title 2. Agriculture
     CiteNameLevel
     2 O.S. 16-22, Road Crews Extinguish FiresCited
     2 O.S. 16-24, Refusal of Road CrewsCited
    Title 11. Cities and Towns
     CiteNameLevel
     11 O.S. 29-105, Municipalities and Fire Protection Districts - ContractsCited
    Title 18. Corporations
     CiteNameLevel
     18 O.S. 592, Fire Departments for Unincorporated Areas - Authority to IncorporateCited
    Title 19. Counties and County Officers
     CiteNameLevel
     19 O.S. 351, Fire Fighting Service - Authority to ProvideDiscussed at Length
     19 O.S. 351.1, Counties - Agreements for Fire Protection and Emergency Services by MunicipalitiesDiscussed at Length
     19 O.S. 351.2, ExclusionsCited
     19 O.S. 351.3, Agreements with Nonprofit Volunteer or Full-time Fire DepartmentDiscussed
     19 O.S. 901.2, Petition - ContentsCited
     19 O.S. 901.7, Powers of DirectorsCited
    Title 51. Officers
     CiteNameLevel
     51 O.S. 154, Extent of LiabilityCited
     51 O.S. 155, Exemptions From LiabilityDiscussed at Length
     51 O.S. 151, Short TitleCited
     51 O.S. 152.1, Adoption of Doctrine of Sovereign ImmunityCited
    Title 62. Public Finance
     CiteNameLevel
     62 O.S. 431, Sinking Fund - Levy for - Omission to Make - Additional LevyCited
    Title 68. Revenue and Taxation
     CiteNameLevel
     68 O.S. 1370, County Sales Tax - Exemptions - Purpose - Duration - County Sales Tax Revolving FundCited
    Title 85. Workers' Compensation
     CiteNameLevel
     85 O.S. 3, Repealed by Laws 2011, SB 878, c. 318, § 87Cited