Opinion No. (1989)

RE: COMPENSATORY TIME REGULATIONS

ATTORNEY;GENERAL HENRY HAS RECEIVED YOUR RECENT LETTER INQUIRING AS TO THE BREADTH OF AUTHORITY HELD BY BOARDS OF COUNTY COMMISSIONERS REGARDING THE USE OF COMPENSATORY TIME IN LIEU OF PAYMENT OF OVERTIME FOR COUNTY EMPLOYEES. AS NO LEGAL BRIEF WAS TRANSMITTED A-LONG WITH YOUR REQUEST, AS REQUIRED UNDER 74 O.S. 8B(D), NO FORMAL RESPONSE CAN BE TENDERED REGARDING THE QUESTIONS POSED BY YOU. HOWEVER, I AM AUTHORIZED TO PROVIDE YOU WITH THE FOLLOWING INFORMATION.

UNDER 29 U.S.C.A. 202(O)(2), A PUBLIC AGENCY EMPLOYER MAY REQUIRE THAT COMPENSATORY TIME BE UTILIZED BY AN EMPLOYEE OF THE PUBLIC BODY, IN LIEU OF OVERTIME PAY, IF A COMPENSATORY TIME AGREEMENT IS MADE AND ENTERED INTO PRIOR TO THE WORK PERFORMED, AND THAT THE AMOUNT OF COMPENSATORY TIME REFERRED TO IN NOT IN EXCESS OF THE MAXIMUM AMOUNTS PROVIDED FOR IN THE FEDERAL LAW. SEE, 29 U.S.C.A. 207 (O)(2)(A)(II)/29 U.S.C.A. 207(O)(2)(B). HOWEVER, IN COUNTY GOVERNMENT IN THIS STATE, THE COUNTY BOARD OF COMMISSIONERS IS NOT THE EMPLOYER OF ALL COUNTY EMPLOYEES, SOME OF SUCH PERSONS BEING HIRED DIRECTLY BY OTHER COUNTY OFFICERS. SUCH A RESULT COULD INITIALLY BRING ONE TO BELIEVE, THEREFORE, THAT THE BOARD OF COMMISSIONERS COULD NOT IMPACT UPON THE HIRING ARRANGEMENTS CONCERNING SUCH PERSONS.

HOWEVER, UNDER 62 O.S. 310.3 (1981) AND 62 O.S. 479 (1988), BOARDS OF COUNTY COMMISSIONERS MAY NOT LAWFULLY APPROVE THE PAYMENT OF ANY CLAIMS IN EXCESS OF AVAILABLE FUNDS, ON PAIN OF REMOVAL FROM OFFICE FOR DOING SO. IT WOULD APPEAR, THEREFORE, THAT A BOARD OF COUNTY COMMISSIONERS COULD VALIDLY IMPLEMENT A RULE THAT COMPELS OTHER COUNTY OFFICIALS TO INCLUDE IN ANY PROSPECTIVE OVERTIME/COMPENSATORY TIME AGREEMENT WITH THEIR EMPLOYEES A QUALIFIER THAT OVERTIME PAY WILL ONLY BE MADE AVAILABLE IN THE EVENT THAT THERE IS SUFFICIENT MONEY IN THE COUNTY COFFERS TO HONOR OVERTIME PAY REQUESTS.

AS TO YOUR QUESTIONS REGARDING THE POTENTIAL IRRECONCILABILITY OF 62 O.S. 310.4 AND 19 O.S. 247, IT WOULD APPEAR THAT THE TWO STATUTES ARE IN CONFLICT WITH ONE ANOTHER. WHILE SUCH CONFLICTS WILL ONLY RARELY BE FOUND TO EXIST, SEE OKLA. A.G. OPIN. NO. 89-011, SUCH WOULD APPEAR TO BE THE CASE HERE. THEREFORE, 62 O.S. 310.4 WOULD PREVAIL.

HOWEVER, AGAIN, PLEASE UNDERSTAND THAT THIS INFORMATIONAL LETTER IS NOT A FORMAL OPINION OF THE ATTORNEY GENERAL AND, THEREFORE, IS NOT BINDING UPON ANY PUBLIC OFFICIAL. RATHER, SAME IS MERELY THE PERSONAL OPINION OF THE UNDERSIGNED. IF A FORMAL OPINION IS DESIRED, PLEASE RESUBMIT YOUR QUESTION WITH A LEGAL BRIEF, COMPLETE WITH CITATIONS OF AUTHORITY AND CLEAR INDICATION OF YOUR VIEW OF THE CORRECT ANSWER TO YOUR QUESTIONS, AND THE MATTER WILL BE CONSIDERED FORMALLY.

(MICHAEL SCOTT FERN)