Judges: W.A. DREW EDMONDSON, Attorney General of Oklahoma
Filed Date: 5/13/1996
Status: Precedential
Modified Date: 7/6/2016
Dear Representative Webb,
¶ 0 This office has received your request for an Opinion asking in effect the following questions:
1. May a private association representing school board memberslobby the Legislature regarding school board or other educationissues and in doing so expend association funds partially derivedfrom membership dues paid from public funds? 2. May a private association representing school board memberssupport or oppose an initiative or referendum and in doing soexpend association funds partially derived from membership feesor dues paid from public funds?
¶ 2 The initial answer to your first question is that once lawfully spent, these public funds lose their identity as public funds in the hands of a non-governmental entity such as the private association contemplated in your question. Krebs v.Board of Trustees of Teachers' Retirement System,
¶ 3 The second analysis considers whether the funds in question were lawfully spent by the school boards, given that some of these funds will be expended by the association to lobby the Legislature. It is axiomatic that a public body such as a school board cannot do indirectly that which it cannot do directly. A.G. Opins. 81-288 and 79-151. Therefore, it is necessary to determine whether school boards have the authority to lobby the Legislature regarding education issues.
¶ 4 The Oklahoma Supreme Court has ruled that the powers of a school board are like those of a municipal corporation, JointSchool District No. 132 v. Dabney,
¶ 5 There are no constitutional provisions concerning public education that include express grants of power to school boards. Okla. Const. art.
¶ 6 The powers expressly granted to school boards are set forth in the School Code of 1971, 70 Ohio St. 1991 and Supp. 1995, §§1-101 to 24-150, particularly 70 O.S.Supp. 1995, §§ 5-105[
Every school [board] shall be a body corporate and shall possess the usual powers of a corporation for public purposes . . . and . . . may sue and be sued and be capable of contracting and being contracted with and holding such real and personal estate as it may come into possession of or by will or otherwise and as authorized by law.
70 O.S.Supp. 1995, § 5-105[
¶ 7 Title 70 O.S.Supp. 1995, § 5-117[
adopting rules governing the board and the school district;
operating a public school system that best fits the needs of the school district;
providing informational material including all pertinent financial information relevant to school bond and millage elections;
purchasing, constructing or renting and maintaining buildings and facilities necessary for the school district;
acquiring property by condemnation;
disposing of real or personal property no longer needed;
Purchasing the necessary property, equipment, furniture and supplies to maintain and operate the school system;
incurring all expenses within the limitations set by law necessary to perform these powers;
contracting with and fixing the duties and compensation of necessary personnel; and
exercising sole control over the schools and property of the district subject to the Oklahoma School Code.
¶ 8 Neither the Oklahoma Constitution nor Sections 5-105 or 5-117 of the Oklahoma Statutes, expressly empower a school board to lobby the Legislature concerning school board or education issues.
¶ 9 Having concluded that neither the Oklahoma Constitution nor statutes expressly empower school boards to lobby, we next determine whether the power of a school board to lobby the Legislature concerning education issues may be fairly implied or necessarily incidental to any power expressly granted. A similar question regarding the power of governmental subdivisions to lobby was addressed in Attorney General Opinion 82-6. That opinion concluded "that Oklahoma governmental subdivisions lack[ed] both the express and implied authority . . . to engage in advocacy calculated to influence legislative decision-making, either directly or by membership in organizations constituted for such purposes." The activity prohibited in that opinion came within the definition of "lobbying" in the Oklahoma statutes at the time the opinion was issued.2 Thus, the Opinion effectively precluded governmental subdivisions from lobbying.
¶ 10 In reaching this conclusion Attorney General Opinion 82-6 mistakenly relied upon the California case of Mines v. DelValle,
That the Supreme Court of this state recognized that there is a difference between the expenditure of funds for election purposes and the use of money to pay expenses in appearances before a judicial or legislative body is demonstrated when the holdings in two cases decided within a six-month period — the Mines case and Crawford v. Imperial Irrigation Dist. — are considered. In the Crawford case the court said:
"The employment of persons to influence legislation, or to influence decisions of the Land Department, or even the decisions of judicial tribunals, in a proper way, is not against sound public policy."
Powell,
¶ 11 Reliance upon the Mines case in Attorney General Opinion 82-6 was misplaced, as that case dealt not with lobbying but with activities designed to influence the outcome of an election. ThePowell and Crawford cases were on point with respect to the activity under examination in Attorney General Opinion 82-6 and in this Opinion — lobbying.
¶ 12 Many of the express powers granted to a school board by virtue of 70 O.S.Supp. 1995, § 5-117[
¶ 13 Concluding otherwise would result in prohibiting those who are in a position, and have indeed been elected, to know the facts concerning problems and needs of our public schools from providing useful and sometimes critical information to the Legislature. This was not the thinking of the Crawford court which, after reviewing the express powers of the public body being considered there, found that the public body necessarily had the implied power to present facts to the legislature regarding proposed legislation which would affect the public body. Crawford,
¶ 14 We must point out that certain legislative action may also have some bearing on this question. From the definition of "lobbyist" and, therefore, from those who must register to be a lobbyist in Oklahoma, the Legislature has exempted publicofficials "acting in [their] official capacity" and publicemployees "acting on behalf of the governmental entity by which[they are] employed." 74 O.S.Supp. 1995, § 4249[
¶ 15 The power to lobby the Legislature is fairly implied in the powers expressly granted to a school board and essential to the purposes of a school board. Therefore, a school board may lawfully pay membership dues to a private association that then uses such funds to engage in lobbying. In view of this analysis, Attorney General Opinion 82-6 is hereby overruled and withdrawn.
Any official in this state who shall direct or authorize the expenditure of any public funds under his care, except as specifically authorized by law, to be used either in support of, or in opposition to, any measure which is being referred to a vote of the people by means of the initiative or referendum, or which citizens of this state are attempting to have referred to a vote of the people by the initiative or referendum, shall be deemed guilty of a misdemeanor, and the office held by such party shall be adjudged vacant and shall be filled in the manner prescribed by law.
26 Ohio St. 1991, § 16-119[
¶ 17 School boards and their members are subject to this statute. A.G. Opin. 80-310. Thus, the right of school board members to participate in the petition process is qualified by the restrictions imposed under 26 Ohio St. 1991, § 16-119[
¶ 18 Section 16-119, being penal in nature, must be strictly construed and restricted to the identical transaction forbidden therein. Quinn v. City of Tulsa,
¶ 19 Pursuant to 70 Ohio St. 1991, § 5-125[
1. A private association representing school board members may expend association funds to lobby the Legislature regardless of the fact that some of those funds are derived from membership dues paid from public funds because school boards have the implied power to lobby the Legislature by virtue of their express powers granted in 70 O.S.Supp. 1995, § 5-117[
70-5-117 ](A). Attorney General Opinion 82-6 is hereby overruled and withdrawn2. A private association representing school board members may not expend association funds partially derived from membership dues paid from public funds to support or oppose an initiative or referendum question if the dues were paid and received with this intent. 70 Ohio St. 1991, § 5-125[
70-5-125 ].3. A public officer and an individual who conspire to violate 26 Ohio St. 1991, § 16-119[
26-16-119 ], may both be subject to criminal prosecution for conspiracy under 21 Ohio St. 1991, § 421[21-421 ].W.A. DREW EDMONDSON ATTORNEY GENERAL OF OKLAHOMA
VICTOR N. BIRD CHIEF DEPUTY ATTORNEY GENERAL (CIVIL DIVISION)
KEVIN NELSON ASSISTANT ATTORNEY GENERAL
"Lobbying", or any derivative of the word, means any oral or written communication with a member of the Legislature, with the Governor, with a member of the Corporation Commission, with a member of the judiciary or with an employee of the Legislature, the Governor, the Corporation Commission or the judiciary on behalf of a lobbyist principal with regard to the passage, defeat, formulation, modification, interpretation, amendment, adoption, approval or veto of any legislation, rule, regulation, executive order or any other program, policy or position of the state government; provided, however, it shall not mean testimony given before, or submitted in writing to, a committee or subcommittee of the Legislature, nor a speech, article, publication or other material that is widely distributed, published in newspapers, magazines or similar publications or broadcast on radio or television; provided further, it shall not mean representation of himself or herself or a client by an attorney acting in a professional capacity as an attorney who has entered an appearance in a court proceeding or quasi-judicial proceeding or a legislative or quasi-judicial proceeding before the Corporation Commission[.]
"Lobbying", or any derivative of the word thereof, means promoting, opposing or otherwise influencing any official action[.]
74 Ohio St. 1981, § 4001[
"Official action" was defined at 74 Ohio St. 1981, § 4001[
"Official action" means any judicial, executive, legislative or administrative action which shall include, but is not limited to, the promulgation of rules and regulations and the setting of rates[.]
A. Every member of the board of education or board of county commissioners who shall hereafter vote for the payment of any money or transfer of any property belonging to the school district in settlement of any claim known to such member to be fraudulent or void, or in pursuance of any unauthorized, unlawful or fraudulent contract or agreement made or attempted to be made, for any school district, by any officer or officers thereof, and every person having notice of the facts with whom such unauthorized, unlawful or fraudulent contract shall have been made, or to whom, or for whose benefit such money shall thereafter be paid, or such transfer of property shall be made, shall be liable in damage to all innocent persons in any manner injured thereby and shall be liable to the school district affected for double the amount of all sums of money so paid, and double the value of property so transferred, as a penalty to be recovered by civil suit brought by the board of education of such school district, or by any school district elector thereof, as provided in Section 5-126 of this Title.B. Any member of a board of education of a school district who votes for the payment of any money or transfers any property belonging to the school district in settlement of any claim known to such member to be fraudulent, void or in pursuance of any unauthorized, unlawful or fraudulent contract or agreement made or attempted to be made for any such district shall be guilty of a misdemeanor. Every person having notice of the facts with whom any unauthorized, unlawful or fraudulent contract shall have been made or to whom or for whose benefit such money or property shall have been or thereafter will be paid shall be guilty of a misdemeanor. Upon conviction of a misdemeanor described in this section, the person shall make full restitution of all monies and/or property misallocated and be punished by a fine of not less than One Thousand Dollars ($1,000.00) or by imprisonment in the county jail for not to exceed one (1) year, or by both such fine and restitution and imprisonment and if such person is a member of a board of education, shall be removed from office pursuant to Section 1181 et seq. of Title 22 of the Oklahoma Statutes or Section 91 et seq. of Title 51 of the Oklahoma Statutes.
Mines v. Del Valle , 201 Cal. 273 ( 1927 )
Crawford v. Imperial Irrigation Dist. , 200 Cal. 318 ( 1927 )
North Carolina Ex Rel. Horne v. Chafin , 62 N.C. App. 95 ( 1983 )
Quinn v. City of Tulsa , 777 P.2d 1331 ( 1989 )
Krebs v. Board of Trustees , 410 Ill. 435 ( 1951 )
Champ v. Poelker , 755 S.W.2d 383 ( 1988 )
Joint School Dist. No. 132 v. Dabney , 127 Okla. 234 ( 1927 )