Question Submitted by: Senator Mary B. Boren, Oklahoma State Senate, District 16 ( 2024 )

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<p><strong><font face="ARIAL" size="4">Question Submitted by: Senator Mary B. Boren, Oklahoma State Senate, District 16</font><font face="ARIAL" size="2"><br>2024 OK AG 5</font><br>Decided: 02/28/2024<br>Oklahoma Attorney General Opinions<br></strong></p><hr>
<font size="1">Cite as: 2024 OK AG 5, __ __</font><hr>
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<p>&#182;0 This office has received your request for an official Attorney General Opinion in which you ask, in effect, the following questions:<br><b>1. Under Oklahoma law, may the same individual serve simultaneously as the Secretary of Transportation, Executive Director of the Oklahoma Department of Transportation, and Executive Director of the Oklahoma Turnpike Authority?<br>2. What is the proper action if an officer of the state unlawfully holds more than one office?<br>3. What are the legal ramifications of executive actions by an official who is unlawfully holding multiple offices?</b></p><b>
</b><p>I.</p>
<p>SUMMARY</p>
<p>&#182;1 This office finds that under the current powers and duties of the Secretary of Transportation, the Executive Director of the Oklahoma Department of Transportation, and the Executive Director of the Oklahoma Turnpike Authority each constitute an "office" for purposes of the dual office holding prohibition in title 51, section 6 (2021). Further, it is a violation of the dual office holding prohibition for a single individual to serve simultaneously in any two or more of these roles.</p>
<p>&#182;2 If a state officer enters upon the duties of a second office in violation of the dual office holding prohibition, it operates as a vacation of the first office. The vacation of the first office is self-executing and notwithstanding the person's intention of continuing to hold the first office. However, the Oklahoma Supreme Court has on numerous occasions held the acts of a de facto officer are as binding as those of a de jure officer and that these acts were valid when the interest of the public and third persons were involved. Therefore, official actions involving the public interest and third persons, though made by officials who are not qualified to serve but act as de facto officers under color of title, are valid, binding, and enforceable.</p><b>
</b><p>II.</p>
<p>BACKGROUND</p>
<p>&#182;3 Oklahoma prohibits state officers and deputies from simultaneously holding another state office or serving as the deputy of any other state office.<span></span><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2"> </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">. As of the time of writing, the Legislature has enumerated thirty exceptions to this prohibition. However, none of these exceptions applies to the Secretary of Transportation, Executive Director of the Oklahoma Department of Transportation ("ODOT"), or Executive Director of the Oklahoma Turnpike Authority ("OTA").</font></font></p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">
</font></font><p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">&#182;4 Before statehood, the Oklahoma Supreme Court established that "a public office is the right, authority, and duty created and conferred by law, by which, for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised for the benefit of the public." <i>Guthrie Daily Leader v. Cameron</i>, </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">, &#182; 8, </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">, 636 (quoting MECHEM, PUBLIC OFFICERS (1889)).</font></font></p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">
<p>&#182;5 The Oklahoma Supreme Court distilled this declaration into three elements in <i>Oklahoma City v. Century Indemnity, Co.</i> Those elements are as follows:</p>
<blockquote>1. the position was created or authorized by law;</blockquote>
<blockquote>2. the law imposes certain definite duties upon the position holder; and</blockquote>
<blockquote>3. the duties imposed involve "the exercise of some portion of <b><i>sovereign power</i> . . . ."</b></blockquote></font></font>
<p><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">, &#182; 21, </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">, 97 (emphasis added). "[A] position [having] these three elements is presumably an 'office,' while one [lacking] any of them is a mere 'employment.'" <i>Id. </i>(quoting <i>Winsor v. Hunt</i>, 243 P. 407, 413 (Ariz. 1926). In <i>Guthrie Daily Leader</i>, the Court explained the third element as follows:</font></font></p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">
<blockquote>The most important characteristic which distinguishes an office from an employment or contract is that the creation and conferring of an office involves a delegation to the individual of some of the sovereign functions of government, to be exercised by him for the benefit of the public; that some portion of the sovereignty of the country, either legislative, executive, or judicial, attaches for the time being, to be exercised for the public benefit. </blockquote><i>
</i></font></font><p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2"><i>Guthrie Daily Leader</i>, </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">, &#182; 10, 41 P. at 636 (quoting MECHEM, PUBLIC OFFICERS (1889)).</font></font></p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">
<p>&#182;6 Thus, barring an exception, an individual violates title 51, section 6 by satisfying the elements established in <i>Century Indemnity</i> while holding two or more offices simultaneously.</p><b>
</b><p>III.</p>
<p>DISCUSSION</p>
<p>A. Simultaneously serving as the Secretary of Transportation, Executive Director of the ODOT, and Executive Director of the OTA violates the dual office holding prohibition in title 51, section 6 (2021).</p>
<p>&#182;7 Your question requires an examination of whether each position meets the elements of an "office" as provided by the Oklahoma Supreme Court in <i>Century Indemnity</i>. This office will address each position in turn.</p>
<b>
</b><p>1. Executive Director of the ODOT</p>
</font></font><p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">&#182;8 The position of Executive Director of ODOT clearly meets each element of the foregoing <i>Century Indemnity </i>test. First, the position, is expressly established by ODOT's enabling statutes. Second, the Executive Director has the "authority and duty to supervise, direct, account for, organize, plan, administer and execute the functions of the [ODOT] . . . ." </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">(A). Finally, in carrying out the "transportation policies, plans and programs of [the] state," the Director exercises sovereign power. </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">. For instance, the Director has the power to "coordinate the development and operation of such transportation facilities in the state including, but not limited to, highways, public transportation, railroad, marine and waterways and aeronautics" and to "apply for, accept and receive and be the administrator for and in behalf of the state agencies, boards and commissions of all federal or other monies now or hereafter available for purposes of transportation . . . ." </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">(2), (7). Accordingly, the Executive Director of ODOT is an office within <i>Century Indemnity</i>. And, without an exception in title 51, section 6, the Executive Director is subject to the dual office holding prohibition under Oklahoma law.</font></font></p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">
<b>
</b><p>2. Secretary of Transportation</p>
</font></font><p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">&#182;9 As detailed below, the Secretary of Transportation (the "Secretary") is also an "office" under <i>Century Indemnity</i>. While specific Cabinet posts are not expressly created by law--excluding the Secretary of Veterans Affairs--the Governor's statutory authority to create a cabinet system for Oklahoma's executive branch authorizes the position of Secretary. </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">. Under the law, cabinet secretaries perform certain duties as follows:</font></font></p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">
<blockquote>The cabinet Secretaries shall:</blockquote>
<blockquote>1. Advise the Governor of any policy changes or problems within the area they represent;<br>2. Advise the entities represented of any policy changes or problems as directed by the Governor; and<br>3. Coordinate information gathering for the Legislature as requested.</blockquote><i>
</i><p><i>Id.</i> &#167; 10.3(B).</p>
</font></font><p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">&#182;10 Historically, most cabinet secretaries have served in merely an advisory capacity, which is not the exercise of sovereign power.<span></span></font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2"> However, in 2000, this office concluded that the Secretary of Commerce exercises sovereign power by virtue of having a seat on a board or commission with authority to issue revenue bonds. </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">, &#182; 14. Similarly, the Secretary is authorized to create the Advanced Mobility Program Advisory Council, which shall provide policy and regulatory recommendations to the Secretary on issues relating to advanced mobile technologies. </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">(A). And, subject to the availability of funds, the Advanced Program is authorized to annually award matching grants up to $500,000 each. <i>Id. </i>&#167; 374(E). Additionally, the Secretary is a member of the Land Mobile Radio Public Safety Interoperability Cooperative, which is established for the purpose of "unifying, stabilizing and enhancing" the public radio safety system communications in Oklahoma. </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">.2(A). Further, the Secretary is authorized to approve areas to be designated as "urban areas" for purposes of permitting outdoor advertising signs in Oklahoma. </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">.</font></font></p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">
</font></font><p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">&#182;11 Moreover, cabinet secretaries have recently been provided with additional oversight responsibilities and authority to control agency operations, including rulemaking and expenditures. Under the Governor's most recent executive order establishing cabinet posts, the Secretary is responsible for thirteen executive branch agencies.<span></span></font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2"> When Senate Bill 913 was passed in 2021, it vested all cabinet secretaries with the ability to unilaterally veto the rulemaking efforts of their respective reporting agencies--a substantial degree of executive authority that is tantamount to outright rulemaking power. </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">(A)(6).</font></font></p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">
</font></font><p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">&#182;12 Furthermore, agencies must obtain their Secretary's approval to hire a lobbyist and/or apply for any grant exceeding $50,000, and not granted by the federal government.<span></span></font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2"> <i>See</i> Exec. Order No. 2019-29, OAC 1:2019-29 (July 5, 2019) and Am. Exec. Order No. 2019-40, OAC 1:2019-40A (March 23, 2021). Notably, a current Executive Order also empowers the Secretary to approve or deny the following for each of its reporting agencies: (1) membership(s) in any private or public organization if the costs of the membership(s) collectively exceed $500, (2) non-essential out-of-state travel for any agency employee that is wholly paid for by an entity other than the State, and (3) any non-emergency purchase that exceeds $25,000. <i>See</i> Exec. Order No. 2023-4, OAC 1:2023-4 (Feb. 28, 2023).</font></font></p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">
<p>&#182;13 With the elevated duties now delegated to all cabinet secretaries, the Secretary's duties have grown beyond an advisory role to include exercising sovereign power. In light of the foregoing, this office concludes that the Secretary is an officer of the State of Oklahoma and is therefore subject to the dual office holding prohibitions in title 51, section 6.</p>
<b>
</b><p>4. Executive Director of the OTA</p>
</font></font><p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">&#182;14 While a more detailed analysis is required, the Executive Director of the OTA also holds an "office" under <i>Century Indemnity</i>. The purpose of the OTA is to construct, operate, and maintain turnpike projects. </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">. The OTA is established pursuant to statute which provides:</font></font></p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">
<blockquote>There is hereby created a body <b><i>corporate and politic</i></b> to be known as the "Oklahoma Turnpike Authority. . . ." The Authority is hereby constituted an instrumentality of the state, and the exercise by the Authority of the powers conferred by this act in the construction, operation, and maintenance of turnpike projects shall be deemed and held to be <b><i>an essential governmental function</i></b> of the state with all the attributes thereof. </blockquote></font></font>
<p><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">(A) (emphasis added).</font></font></p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">
</font></font><p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">&#182;15 The Oklahoma Supreme Court has held that the OTA is a "governmental agency" acting in a "governmental capacity."<span></span></font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2"> <i>Henry v. Okla. Tpk. Auth.</i>, </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">, &#182; 22, </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">, 902. The property managed by the OTA is property of the State of Oklahoma. <i>See Application of the Okla. Tpk. Auth.</i>, </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">, &#182; 19, </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">, 803; </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">.</font></font></p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">
</font></font><p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">&#182;16 The position of Executive Director is statutorily authorized under title 69, section 1705. </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">(k). The Oklahoma Supreme Court has held that an "office or position which is created . . . pursuant to power conferred by the Legislature upon [a] governing body is just as much created by law as if the Legislature itself had acted . . . ." <i>Century Indemnity</i>, </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">, &#182; 28, 62 P.2d at 98. Additionally, OTA's administrative rules, which have the effect of law, authorize the Executive Director position.<span></span></font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2"> OAC 731:1-1-3(b).</font></font></p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">
<p>&#182;17 The law also imposes certain definite duties upon the Executive Director. For instance, the OTA's administrative rules allow the Executive Director to extend the term of a contractor's prequalification to bid on authority projects. <i>See </i>OAC 731:10-1-2(n). Further, the Executive Director has the authority to lift or suspend a contractor's debarment from bidding on OTA contracts. OAC 731:10-1-5(7).</p>
<p>&#182;18 The position of Executive Director of OTA is thus clearly established by law and provides definite duties. Therefore, the first two elements of the <i>Century Indemnity </i>test are met. For the reasons set forth below, the duties imposed also involve the exercise of some portion of the State's sovereign power.</p>
</font></font><p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">&#182;19 Again, exercising sovereign power requires that some portion of the state's sovereignty--whether legislative, executive, or judicial--attaches for the time being, to be exercised for the public benefit. <i>Guthrie Daily Leader</i>, </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">, &#182; 10, 41 P. at 636. In <i>Guthrie Daily Leader</i>, the Court went on to describe the exercise of sovereign power as follows:</font></font></p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">
<blockquote>The term "office" implies a delegation of some portion of the sovereign power to, and a possession of it by the person filling the office, and the exercise of such power within legal limits constitutes the correct discharge of the duties of such office. The power thus delegated and possessed may be a portion belonging sometimes to one of the three great departments, and sometimes to another; still, it is a legal power, which may be rightfully exercised, and, in its effects, will bind the rights of others, and be subject to revisions and corrections only according to the standing laws of the state.</blockquote><i>
</i></font></font><p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2"><i>Id.</i>, </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">, &#182; 15, 41 P. at 636 (quoting [<i>Bunn</i>] <i>v. People ex rel. Laflin</i>, 45 Ill. 397, 409 (1867)).</font></font></p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">
</font></font><p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">&#182;20 This office concludes that the Executive Director exercises some portion of the sovereign power for six reasons. First, Oklahoma law expressly authorizes the Executive Director to serve as an administrative review officer on an appeal of a toll evasion violation. 47 O.S.Supp.2022, &#167; 11-1401.2. The Executive Director's final decision binds the contestant, subject only to revision and correction of a district court having jurisdiction in the county where the contestant lives. <i>Id.</i> Second, as discussed above, the Executive Director can lift or suspend a contractor's debarment from bidding on OTA contracts, thereby binding the rights of others.<span></span></font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2"> OAC 731:10-1-5(7); <i>Ex parte Tindall</i>, </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">, &#182; 24, </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">, 130 ("The police power is an attribute of sovereignty . . . .").</font></font></p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">
</font></font><p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">&#182;21 Third, the Executive Director has the authority to negotiate and execute contracts. At the OTA's December 12, 2023, meeting, the Executive Director was authorized to negotiate and execute contracts on no fewer than ten agenda items, including statements of work in an amount not to exceed $13,964,776.40 and separately, construction management contracts not to exceed $14,000,000. <i>See </i>December 12, 2023, Meeting Agenda, OTA, Items 1138 and 1142. Fourth, Oklahoma law authorizes the OTA to authorize the Executive Director to approve change orders not exceeding $250,000. </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">. Fifth, the OTA recently amended its bylaws to authorize the Executive Director to take the following action:</font></font></p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">
<blockquote>1. call a special meeting of the Authority pursuant to the Oklahoma Open Meeting Act;<br>2. execute in the name of the Authority, checks, drafts and orders drawn on the commercial trust accounts or checking accounts of the Authority;<br>3. execute in the name of the Authority, drafts and orders drawn on the revolving fund account in any bank or trust company;<br>4. negotiate and execute the following contracts and expenditures without the Authority's approval:</blockquote>
</font></font><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">
</font></font><blockquote><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">a. contracts not exceeding the sum of $750,000,<br>b. payroll, without limits, and<br>c. change orders and supplemental agreements on contracts when the amount does not exceed $150,000.<span></span></font></font><span></span></blockquote><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">
</font></font><p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">OTA Bylaws, attached to the January 9, 2024, OTA Board Meeting Agenda and on file with the author. Finally, the Executive Director is required to give a bond to the Authority before entering upon his duties, which is one characteristic of a public officer exercising the sovereign's power. </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">; </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">.</font></font></p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">
</font></font><p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">&#182;22 Three prior opinions of this office further support the conclusion that the Executive Director of the OTA is an "office" under <i>Century Indemnity.</i> First, in 1985, this office determined that a member of the OTA held an office for purposes of the dual office holding prohibition, in part, because of the sovereign functions of adopting rules and regulations and the ability to collect and pledge revenues. </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">. Second, this office previously concluded that a position with duties of receiving, giving, and disbursing funds attributable to a governmental entity is an "office." </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">. Finally, conducting and managing business affairs of a governmental body, making and executing contracts, purchasing necessary equipment, and appointing and employing such officers and employees has been determined to be the exercise of some portion of the sovereign power. </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">.</font></font></p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">
<p>&#182;23 The Executive Director clearly exercises some portion of the sovereign power. Accordingly, the Executive Director is an officer for purposes of the dual office holding prohibition in title 51, section 6.</p>
</font></font><p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">&#182;24 In determining that all three positions are an "office," this office considers, in turn, if any exceptions to the dual office holding prohibition exist in law. The Legislature has provided thirty exceptions to the dual office holding prohibition, but none of those exceptions include the Executive Director of the OTA, ODOT, or Secretary. <i>See </i></font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">. Notably, state statutes allow ODOT to contract with the OTA for "[r]ecord keeping, reporting, administrative, planning, engineering, legal and clerical functions of the Authority not in conflict with provisions of existing trust agreements." </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">. However, the statute contemplates such an agreement would include the "<b><i>temporary</i></b> transfer of personnel" not permanent sharing of the principal executive officer. <i>Id. </i>(emphasis added). This office does not construe such personnel-sharing arrangements to constitute an exception to the dual office holding prohibition.<span></span></font></font><span></span></p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">
<p>&#182;25 In light of the foregoing, this office finds that it is a violation of title 51, section 6 for a single individual to serve simultaneously in any two or more roles as the Secretary, Executive Director of ODOT, and Executive Director of OTA.</p>
</font></font><p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">&#182;26 You further asked this office to opine on whether the OTA's 1989 Trust Agreement prohibits the Executive Director from serving in other roles as Secretary and the Executive Director of ODOT.<span></span></font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2"> Given the above analysis, finding violations of Oklahoma's dual office holding prohibitions, it is not necessary to reach this question regarding the 1989 Trust Agreement.</font></font></p>
<p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2"><b>B. When an office holder accepts and enters upon the duties of a second office, acceptance of the second office operates to ipso facto<i> </i>vacate the first office. </b></font></font></p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">
</font></font><p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">&#182;27 The Oklahoma Supreme Court has long held that "entering upon the duties of a second office or acceptance of a prohibited office <b><i>ipso facto</i></b> operates as a vacation of the first office, notwithstanding the person's intention of continuing to hold the first office." <i>Nesbit v. Apple</i>, </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">, &#182; 24, </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">, 1243 (citing <i>Wimberly v. Deacon</i>, </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">, </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">). Though the <i>Wimberly </i>case involved the dual office holding prohibition found in section 12, article II, of the Oklahoma Constitution, the Oklahoma Supreme Court has further determined that the self-executing nature of the dual office holding prohibition would apply under a similar statutory prohibition.<span></span></font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2"> <i>See Gibson v. Crowder</i>, </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">, &#182; 10, </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">, 629 ("The same rule would apply in considering similar statutory provisions.").</font></font></p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">
</font></font><p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">&#182;28 Should a conflict of interest arise on the part of the appointing authority or should the office holder attempt to maintain his vacated office(s) under color of title, relief may be obtained through civil action.<span></span></font></font><span></span><b><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2"></font></font></b></p>
<p><b><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">C. Official actions involving the public interest and third persons, though made by officials who are not qualified to serve, but act as de facto<i> </i>officers under color of title, are valid, binding, and enforceable.</font></font></b></p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">
<p>&#182;29 Your last question involves the enforceability or validity of official actions taken by an official who is not properly serving in office. The validity or enforceability of the official's prior official actions depends on whether the individual is a de facto officer.</p>
<blockquote>An "officer de facto" is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interest of the public and third persons, where the . . . functions of the office are exercised by one who was in the actual possession of it under color of title.</blockquote><i>
</i></font></font><p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2"><i>Hatfield v. Jimerson</i>, </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">, &#182; 9, </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">, 982 (quoting <i>State ex rel. Tayrien v. Doggett</i>, </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">, &#182; 6, </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">, 186).</font></font></p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">
<p>&#182;30 When determining whether a judge--who was not qualified to serve in the office--was a de facto judge, the Oklahoma Supreme Court stated:</p>
<blockquote>While mere possession of the office is not sufficient to make the incumbent a de facto judge, possession plus color of title to the office, if the office actually exists, is considered sufficient. Clearly, in the instant case, the appointment was not void on its face, for it was signed by the Governor of the state, the appointee took the oath of office, filed the statement thereof with the proper official, and actively assumed the duties of the office. He thus performed the duties with a color of right, or color of title to the office.</blockquote><i>
</i></font></font><p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2"><i>Sheldon v. Green</i>, </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">, &#182; 8, </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">, 115. The Court further stated that "the acts of a de facto officer are as binding as those of a de jure officer. This principle is well recognized and applies as thoroughly to the office of judge <b>as it does to other public offices</b>." <i>Id.</i>, </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">, &#182; 8, 77 P.2d at 116 (emphasis added).</font></font></p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">
</font></font><p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">&#182;31 The Oklahoma Supreme Court has on numerous occasions held that public officials were de facto officers when lacking some qualification(s) to hold their office but that their acts were valid when the interest of the public and third persons is involved. <i>See, e.g.</i>, <i>Ajax Contractors, Inc. v. H.L. Myatt</i>, </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">, &#182; 17, </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">, 33--34. Therefore, official actions involving the public interest and third persons, though made by officials who are not qualified to serve but, without having prior notice otherwise, act as de facto officers under color of title, are valid, binding, and enforceable.<span></span></font></font><span></span></p><b><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">
<p>&#182;32 It is, therefore, the official Opinion of the Attorney General that:</p>
</font></font></b><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2"><blockquote><b>1.</b> <b>A single individual holding one or more offices simultaneously as the Secretary of Transportation, Executive Director of the Oklahoma Department of Transportation, and the Executive Director of the Oklahoma Turnpike Authority violates the dual office holding prohibition in title 51, section 6 (2021).</b></blockquote><b>
<blockquote>2. When an office holder accepts and enters upon the duties of a second office, acceptance of the second office operates to ipso facto<i> </i>vacate the first office. </blockquote>
</b><b>
</b><p>3. Official actions involving the public interest and third persons, though made by officials who are not qualified to serve but act as de facto officers under color of title, are valid, binding, and enforceable.</p>
<p>&#160;</p>
<blockquote>GENTNER DRUMMOND<br>ATTORNEY GENERAL OF OKLAHOMA</blockquote>
<blockquote>A. CHASE SNODGRASS<br>DEPUTY ATTORNEY GENERAL</blockquote><b>
</b><p>FOOTNOTES</p></font></font>
<p><span></span><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2"> "[N]o person holding an office under the laws of the state and no deputy of any officer so holding any office shall, during the person's term of office, hold any other office or be the deputy of any officer holding any office, under the laws of the state." </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">(A).</font></font></p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">
</font></font><p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2"><span></span></font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2"> <i>See</i> </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">(states that Cabinet Secretaries functions consist of "giving opinions and performing clerical work" based on the authorizing statute title 74, section 10.3(1991)); </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">(finding that the Secretary of Finance and Revenue had no specific statutory duties and therefore did not exercise sovereign power).</font></font></p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">
</font></font><p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2"><span></span></font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2"> The Secretary is responsible for the following executive entities or their successors: ODOT, OTA, OTA Board, Transportation Commission, ODOT County Advisory Board, ODOT Tribal Advisory Board, Committee on the Pilot Shortage, Highway Construction Materials Technician Certification Board, Interstate Midwest Reginal Passenger Rail Compact Commission, Oklahoma Aeronautics Commission, Oklahoma Tourism Signage Advisory Task Force, Tri-State Commission on the McClellan-Kerr Arkansas River Navigation System, and Waterways Advisory Board. Order No. 2023-8, OAC 1:2023-8 (Sept. 13, 2023).</font></font></p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">
</font></font><p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2"><span></span></font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2"> If an executive order has a specific statutory foundation, is designed to enforce the law and not accomplish a legislative result, it has the effect of a statute. </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">; </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">; <i>City of Albuquerque v. U.S. Dep't of Interior</i>, 379 F.3d 901, 913 (10<span>th</span></font></font></p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">
</font></font><p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2"><span></span></font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2"> While not necessary to the analysis here, this office and the Oklahoma Supreme Court have also categorized the OTA in other ways. <i>See</i> </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">(the OTA is "not the 'State' nor one of the 'departments thereof . . . .'"); <i>In re Appl. of the Okla. Capitol Improvement Auth.</i>, </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">, &#182; 2 n.2, </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">, 1257 n.2 ("The Oklahoma Capitol Improvement Authority is a quasi-governmental entity created by statute. Title </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2"> defines the OCIA as a 'body corporate and politic' and an 'instrumentality of the state."); <i>Hirschfeld v. Okla. Tpk. Auth.</i>, </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">, &#182; 7, 541 P.3d 811, 817 (referencing the OTA as a public trust). And, after all, the OTA has recently declared itself to be an executive branch agency. <i>See Okla. Tpk. Auth. v. Treat</i> <i>(In re Constitutionality of HB 2263)</i>, No. CV-24-72, Dist. Ct. Okla. Cnty., Okla.); Petition, at 8, &#182; 17 (Jan. 9, 2024).</font></font></p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">
</font></font><p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2"><span></span></font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2"> </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">(C) ("Rules shall be valid and binding on persons they affect, and shall have the force of law unless amended or revised or unless a court of competent jurisdiction determines otherwise. Except as otherwise provided by law, rules shall be prima facie evidence of the proper interpretation of the matter to which they refer.").</font></font></p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">
</font></font><p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2"><span></span></font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2"> <i>Ex parte Tindall</i>, </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">, &#182; 25, 229 P. at 130 ("The term 'police power' comprehends the power to make and enforce all wholesome and reasonable laws and regulations necessary to the maintenance, upbuilding, and advancement of the public weal and protection of the public interests.").</font></font></p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">
</font></font><p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2"><span></span></font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2"> The OTA cited title 69, section 1705 as authority for the amendments. Section 1705(a) provides the Authority with the power to "adopt bylaws for the regulation of its affairs and conduct of its business." </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">(a).</font></font></p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">
</font></font><p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2"><span></span></font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2"> <i>Rodgers v. Higgins</i>, </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">, &#182; 18, </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">, 409 ("We should not read into the law that which is not there." (emphasis omitted)).</font></font></p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">
</font></font><p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2"><span></span></font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2"> On February 1, 1989, the OTA entered into a trust agreement with The Liberty National Bank and Trust Company of Oklahoma City (the "1989 Trust Agreement"). The 1989 Trust Agreement and its supplements essentially pledge the tolls or other revenues from turnpike projects for service of the bonds and provides for certain obligations to both parties. Section 706 of the 1989 Trust Agreement requires the OTA to employ a Chief Executive Officer who<i> </i>"<b><i>shall devote his entire time to the performance of such duties</i>.</b>" Trust Agreement between OTA and The Liberty National Bank and Trust Company of Oklahoma &#167; 706 (Feb. 1, 1989) (emphasis added) (on file with author). There have been at least eighteen supplemental agreements to the 1989 Trust Agreement, which form a part thereof and ratify the original 1989 Trust Agreement. However, this office has not reviewed the supplemental agreements to determine if an amendment has been made to this "entire time" duty. Nonetheless, this office has previously addressed the meaning of the requirement to "devote his or her entire time to the duties" proscribed by a particular position. <i>See </i></font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">&#182; 12 (the operative language "mandates that the position . . . is a full-time position, and that the [individual] is prohibited from engaging in any other occupation or outside interests during regular business hours").</font></font></p>
<p><span></span><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2"> In support of this holding, the <i>Gibson </i>court<i> </i>reasoned that the court in<i> Wimberly </i>quoted with approval the statement of the rule in Mecham, Public Officers:</font></font></p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">
<blockquote>Where, however, it is the holding of two offices at the same time which is forbidden by the constitution or the statutes, a statutory incompatibility is created, similar in its effect to that of the common law, and, as in the case of the latter, it is well settled that the acceptance of a second office of the kind prohibited, operates ipso facto to absolutely vacate the first. </blockquote>
<blockquote>No judicial determination is therefore necessary to declare the vacancy of the first, but the moment he accepts the new office the old one becomes vacant.</blockquote><i>
</i></font></font><p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2"><i>Gibson</i>, </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">, &#182; 10, 165 P.2d at 629--30 (quoting <i>Wimberly</i>, </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">, &#182; 27, 144 P.2d at 453); <i>see also </i>Mechem, Public Officers (1889).</font></font></p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">
</font></font><p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2"><span></span></font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2"> Forcible removal may be effectuated by an action in the nature of <i>quo warranto</i>. </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">--1538; <i>see also State ex rel. Stuart v. Rapp</i>, </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">, </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">. Any person serving as a state official who does not meet the qualifications of office or is holding office in violation of the dual office holding prohibition is unlawfully holding or exercising public office. <i>Id.</i> An action in the nature of <i>quo warranto</i> may be filed by the Attorney General or a district attorney on behalf of the State or by a person claiming an interest in the office. </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">; <i>see also</i> <i>Callendar v. Dist. Ct. for the Twentieth Jud. Dist.</i>, </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">, &#182; 9, </font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">, 630 (holding that the thirty-day limitation period for filing a <i>quo warranto</i> action in the statute did not apply to actions initiated by the district attorney or Attorney General). While the Attorney General or a district attorney may bring a <i>quo warranto</i> action, there is no explicit affirmative duty to do so.</font></font></p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2">
</font></font><p><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2"><span></span></font></font><span></span><font face="Arial,Arial" size="2"><font face="Arial,Arial" size="2"> This opinion does not address the validity of executive actions taken by a state officer after the officer has received notice, from proper authority, that they are purporting to exercise a second office in violation of title 51, section 6 (2021).</font></font></p>
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