Judges: W.A. DREW EDMONDSON, Attorney General of Oklahoma
Filed Date: 10/29/1998
Status: Precedential
Modified Date: 7/6/2016
Dear Representative Phillips,
¶ 0 This office has received your request for an official Opinion in which you asked, in effect, the following questions:
1. Does the language "when allotting new space" in 61 O.S.1991, § 206(D), which governs guidelines to be used forallocating space for employees of State agencies and governmentalbodies as defined in the Public Building Construction andPlanning Act, apply to situations involving only newconstruction, or is its application more general in nature, toinclude lease renewals, remodeling existing space, movingoffices, or any other similar types of activities? 2. Under the Public Building Construction and Planning Act,does the Department of Central Services have an ongoingobligation to promulgate space standards consistent withguidelines set by the federal General Services Administration?
All state agencies, and all individuals representing such governmental bodies, shall use the federal General Services Administration (GSA) guidelines when allotting new space for employees until the Office of Public Affairs [now Department of Central Services] can promulgate such space standards consistent with said GSA guidelines.
¶ 2 61 Ohio St. 1991, § 206[
"Construction" means the process of planning, acquiring, designing, building, equipping, altering, repairing, improving, or demolishing any structure or appurtenance thereto including facilities, utilities, or other improvements to any real property but not including highways, airports, tunnels, sewers not related to a structure or appurtenance thereto, or dams[.]
61 Ohio St. 1991, § 202[
¶ 3 The Act creates within DCS the Construction and Properties Division ("the Division"), and the duties of the Division reflect the nature and purpose of the Act — to deal with "construction of buildings used by state agencies, capital improvements, and utilization of land owned by the State of Oklahoma." 61 O.S.1991, § 204[
¶ 4 In viewing the Act as a whole, the phrase "when allotting new space" for employees cannot be limited to "new construction" in the sense of a newly constructed building, but is more generally applied to cover any of the categories which fit within the definition of construction in the Act. While a mere lease renewal as mentioned in your question does not meet the definition of construction, moving offices might or might not, depending on whether it involves any of the processes mentioned in Section 202(2). Whether a particular situation comes within the definition of construction so as to bring it under the Act is a question of fact which cannot be answered in an Attorney General Opinion. 74 O.S. Supp. 1997, § 18b[
¶ 6 Space allocation for State agencies has far-reaching fiscal implications. Each allotted square foot affects the amount of dollars to be expended by an agency. "The purpose of the space allocation standards is to present a uniform and consistent method of evaluation of the amount of space required to support a specific program or agency in state owned, non-state owned space, and all real property to be purchased or lease-purchased by the State." OAC
¶ 7 The power to determine policy of law is primarily legislative and cannot be delegated. State v. Parham,
¶ 8 Section 206(D) of the Act required State agencies to use GSA guidelines for allocating new space only until standards consistent with those guidelines could be promulgated by DCS. It does not require an ongoing conformity with GSA guidelines.
¶ 9 It is, therefore, the official Opinion of the AttorneyGeneral that: 1. The language "when allotting new space" in 61 Ohio St. 1991,§ 206(D), which governs guidelines to be used for allocatingspace for employees of State agencies and governmental bodies asdefined in the Public Building Construction and Planning Act,61 Ohio St. 1991 and Supp. 1997, §§ 201 through 211, applies toany activity which fits within the definition of "construction"in 61 Ohio St. 1991, § 202(2). Whether a particular activityconstitutes construction is a question of fact which cannot beanswered in an Attorney General Opinion. 74 O.S. Supp. 1997, §18b(A)(5). 2. The Public Building and Construction Act at 61 Ohio St. 1991,§ 206(D) of the Oklahoma Statutes does not create an ongoingobligation on the part of the Department of Central Services topromulgate space standards consistent with the federal GeneralServices Administration guidelines. The federal guidelines werean interim standard to be used by State agencies in 1985 untilState standards consistent with those 1985 federal guidelineswere promulgated.
W.A. DREW EDMONDSON ATTORNEY GENERAL OF OKLAHOMA
GAY ABSTON TUDOR ASSISTANT ATTORNEY GENERAL