Judges: W.A. DREW EDMONDSON, Attorney General of Oklahoma
Filed Date: 4/5/2001
Status: Precedential
Modified Date: 7/6/2016
Dear Auditor and Inspector Clifton H. Scott,
¶ 0 This office has received your request for an official Attorney General Opinion in which you ask the following question:
May an employee of an ad valorem supported institution serveas a member of the county excise board of the county from whichthe institution receives ad valorem funds?
¶ 1 The concern raised by your question is the appearance of a conflict of interest when a county excise board member is employed by an institution supported with ad valorem tax funds. In addition to supporting city and county governments, ad valorem taxes support elementary, secondary and vocational-technical schools, county health departments, ambulance services, municipally owned hospitals, and libraries. See Okla. Const. art.
¶ 3 In addition to apportioning the millage, the excise board annually examines the financial statements of the prior year and the estimated needs of the current year submitted by the governing bodies of the county and each city, town and school district within the county. See 68 Ohio St. 1991, § 3002[
1. Examines the financial statements to ascertain the true fiscal condition of the fund accounts as of the close of the previous fiscal year;
2. Examines the items and amounts stated in the estimate of needs, and if any are not authorized by law or in excess of needs, the board must strike such items;
3. Examines the estimate of needs, and if the governing board has failed to make provision for mandatory governmental functions, the board prepares its own estimate, publishes it in the newspaper and submits it to the governing board of the political subdivision for further consideration;
4. Computes the total means available to each fund;
5. If the total of the several items of estimated needs for lawful purposes is within the income and revenue lawfully available, the excise board approves the estimate and computes the levy required;
If the total estimate exceeds the means provided to finance the same, the excise board revises the estimate by reducing items, in whole or in part.
See 68 Ohio St. 1991, § 3007[
¶ 4 The board is "empowered to require such further detail as to any item of any estimate as it deems necessary and proper" when determining the validity or invalidity of items of appropriation. 68 Ohio St. 1991, § 3008[
¶ 5 "The Board functions as a watchdog agency which is empowered to require adequate and accurate reporting of finances and expenditures for all budgets and supplemental purposes and to review all appropriations and requests to determine if they are legal and adequately funded." Summey v. Tisdale,
¶ 6 The Legislature has provided alternate methods to the provisions found at 68 Ohio St. 1991 Supp. 2000, §§ 3001-3033 for adopting a budget by counties, cities, towns and school districts. Counties may opt to use the County Budget Act, 19O.S. 1991 Supp. 2000, §§ 1404-1421. Under both schemes, the county excise board has final approval of the county budgets.See 68 Ohio St. 1991, § 3002[
¶ 7 School districts have the option of using the School District Budget Act, 70 O.S. Supp. 2000, §§ 5-150[
¶ 8 Under the Title 68 procedures, the excise board must approve any supplemental appropriations for counties, cities, towns and school districts (see 68 Ohio St. 1991, § 3021[
It shall also be unlawful for any member of the county excise board to serve as employee, official, or attorney for any county or city, or town of the county, or for any such member to represent any taxpayer before such board in any manner, or to use his or her position as a board member to further his or her own interests. It shall also be unlawful for any taxpayer or interested party to employ any member of the county excise board in any matter coming before the board.
68 O.S. Supp. 2000, § 3005.1[
¶ 10 There are criminal penalties for violating this section.See 68 O.S. Supp. 2000, § 3005.1[
¶ 11 The legislative intent of Section 3005.1(B) is to prevent board members from having conflicts of interest. The provision keeps city or county employees from being in a position to make decisions regarding the budgets from which they derive their personal income. Section 3005.1(B) references employees of city, town, and county, but makes no reference to school employees. School employees are employees of the school district, rather than the city or county. See State ex rel. Riley v. City ofLawton,
¶ 12 The legislative difference in treatment between school district employees and employees of cities and counties may have been based on the fact that the excise board has historically had less discretion in regard to school district budgets as compared to county budgets. The conflict of interest provision in Section 3005.1 for county excise board members first appeared in the statutes in 1941. See 1941 Okla. Sess. Laws § 38 (codified at 68 Ohio St. 1941, § 38[68-38]). The current provision is substantially the same as the 1941 law, which prohibited county, city and town employees from serving on the county board of equalization or the county excise board, which then, as now, were composed of the same individuals. See 68 Ohio St. 1941, § 15.38[68-15.38]. The excise board had no authority to change the school district's estimate of needs if funding was adequate to meet the need. See Bd. of Educ.v. Excise Bd.,
¶ 13 The 1941 statute addressing conflicts of interest of excise board members also provided that no person may be appointed to the board of equalization who is or has been at any time during the two years preceding his appointment an employee of the State, county, school district or municipal subdivision.6 See 68 Ohio St. 1941, § 15.38[68-15.38]. Then, as now, board of equalization members also served as excise board members. "Employee" was changed to "officer" by 1945 Okla. Sess. Laws ch. 1b. Current law prohibits a county board of equalization member from holding "an elected office of the state, county, school district or municipal subdivision." 68 O.S. Supp. 2000, §2861[
¶ 14 Section 3005.1 also prevents board members from using their position to further their "own interests." Id. Generally, the type of "interest" that disqualifies public officers from certain transactions is a financial or pecuniary interest. See
A.G. Opin. 88-88, 209. Whether such an interest exists in any given case is a question of fact. Another provision of law related to your question is Okla. Const. art.
The receiving, directly or indirectly, by any officer of the State, or of any county, city, or town, or member or officer of the Legislature, of any interest, profit, or perquisites, arising from the use or loan of public funds in his hands, or moneys to be raised through his agency for State, city, town, district, or county purposes shall be deemed a felony.
Id. This provision prohibits public officers from receiving a direct or indirect profit from the use of public funds. See Westv. Bd. of Comm'rs,
¶ 15 There is no prohibition, as a matter of law, for an employee of an institution supported with ad valorem tax funds, other than an employee of a city, county, or town, to serve on the county excise board. To the extent that Attorney General Opinions 80-100 and 84-102 conflict with this Opinion, they are hereby withdrawn.
¶ 16 It is, therefore, the official Opinion of the AttorneyGeneral that: An employee of a county or of a city or a town within thecounty may not serve on the excise board for that county. See68 O.S. Supp. 2000, § 3005.1(B). There is no statutoryprohibition against employees of other entities supported by advalorem taxes, such as employees of a school district, fromserving on the county excise board. However, all board membersare prohibited from using their positions to further their owninterests. See id.
W.A. DREW EDMONDSON ATTORNEY GENERAL OF OKLAHOMA
KATHRYN BASS ASSISTANT ATTORNEY GENERAL
Abel v. Madden , 738 P.2d 1340 ( 1987 )
Cooper v. STATE EX REL. DEPT. OF PUB. SAF. , 917 P.2d 466 ( 1996 )
Summey v. Tisdale , 658 P.2d 464 ( 1982 )
Fuller v. Odom , 741 P.2d 449 ( 1987 )
State v. City of Lawton , 101 Okla. 176 ( 1924 )
West v. Board of Comrs. of Caddo County , 59 Okla. 169 ( 1916 )
Board of Ed. of Oklahoma City v. Excise Board , 175 Okla. 363 ( 1935 )
Clay v. Independent School District No. 1 of Tulsa County , 935 P.2d 294 ( 1997 )