Judges： THOMAS L. SPENCER
Filed Date： 11/19/1990
Status： Precedential
Modified Date： 7/6/2016
RE: REQUESTS FOR BACKGROUND INVESTIGATIONS AUTHORITY FOR FIRST ASSISTANT ATTORNEY GENERAL TO REQUEST INVESTIGATIONS
YOU HAVE ASKED THIS OFFICE TO RESPOND TO TWO (2) RELATED QUESTIONS RELATING TO THE FORMALITIES REQUIRED TO REQUEST OSBI INVESTIGATIONS. BECAUSE YOU HAVE INDICATED THAT THERE IS SOME URGENCY TO ONE OF THESE QUESTIONS, WE WILL NOT REQUIRE YOU TO ATTACH THE USUAL LEGAL MEMORANDUM FROM YOUR STAFF COUNSEL AND I HAVE TAKEN THE LIBERTY TO PREPARE THIS INFORMAL LETTER IN RESPONSE TO YOUR QUESTIONS.
THE FIRST QUESTION YOU ASK IS WHETHER GOVERNOR BELLMON CAN MAKE A "BLANKET REQUEST" FOR THE VARIOUS BACKGROUND INVESTIGATIONS WHICH WILL BE REQUIRED BY GOVERNOR-ELECT WALTERS AS HE IS TRYING TO PUT TOGETHER THE NEXT ADMINISTRATION. IN OTHER WORDS, AS I UNDERSTAND IT, GOVERNOR BELLMON HAS FURNISHED YOU WITH A LETTER WHICH ASKS THAT THE OSBI CONDUCT ANY BACKGROUND CHECKS WHICH MR. WALTERS MAY REQUIRE RATHER THAN SEND YOUR AGENCY AN INDIVIDUAL LETTER FOR EACH PERSON INVESTIGATED. THE SHORT ANSWER TO THIS QUESTION IS, OF COURSE THE GOVERNOR MAY MAKE HIS REQUESTS IN THIS MANNER.
THE GOVERNOR IS REFERRED TO AT LEAST THREE (3) SEPARATE TIMES IN THE OSBI STATUTES AS ONE OF THE OFFICERS WHO MAY REQUEST THE OSBI TO ACT IN A GIVEN MATTER. TITLE 74 Ohio St. 150.2 (1990) PROVIDES, IN PERTINENT PART, AS FOLLOWS:
"THE OKLAHOMA STATE BUREAU OF INVESTIGATION SHALL HAVE THE POWER AND DUTY TO:
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7. INVESTIGATE AND DETECT CRIMINAL ACTIVITY WHEN DIRECTED TO DO SO BY THE GOVERNOR. . .
TITLE 74 Ohio St. 150.5, FURTHER PROVIDES:
"A. OKLAHOMA STATE BUREAU OF INVESTIGATION INVESTIGATIONS NOT COVERED UNDER 74 Ohio St. 150.2 OF THIS TITLE SHALL BE INITIATED AT THE REQUEST OF THE FOLLOWING PERSONS:
1. THE GOVERNOR;
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B. THE GOVERNOR MAY INITIATE SPECIAL BACKGROUND INVESTIGATIONS WITH THE WRITTEN CONSENT OF THE PERSON WHO IS THE SUBJECT OF THE INVESTIGATION."
THERE IS NOTHING IN THE ABOVE-REFERENCED STATUTORY LANGUAGE WHICH INDICATES THAT THE GOVERNOR MUST FOLLOW SOME PARTICULAR FORMALITY WHEN ASKING THE OSBI TO INVESTIGATE A PARTICULAR MATTER. THE CHIEF CONCERN FOR THE OSBI SHOULD ONLY BE THAT THE BUREAU UNDERSTANDS THE GOVERNOR'S REQUEST AND THAT HE HAS AUTHORIZED THE REQUEST IN WRITING. I DO THINK THAT 74 Ohio St. 150.5(B) WOULD APPLY TO THESE BACKGROUND INVESTIGATIONS SO THAT THE PERSON BEING INVESTIGATED WOULD HAVE TO CONSENT TO IT IN WRITING.
IF GOVERNOR BELLMON HAS MADE A BROAD REQUEST FOR THE OSBI TO CONDUCT ALL SUCH INVESTIGATIONS REQUIRED BY THE NEW ADMINISTRATION, THAT SHOULD BE SUFFICIENT AUTHORITY FOR THE OSBI TO PROCEED. THE GOVERNOR IS OBVIOUSLY TRYING TO LIMIT THE BUREAUCRATIC RED TAPE TO A MINIMUM. IT IS ALSO RELEVANT THAT THESE REQUESTS ARE NECESSARY FOR THE GOVERNOR-ELECT TO SCREEN SOME KEY PEOPLE FOR THE NEXT ADMINISTRATION. MR. WALTERS WILL SOON BE GOVERNOR WALTERS AND IT SEEMS THAT IT WOULD BE AN EXCELLENT IDEA TO COOPERATE WITH GOVERNOR BELLMON AND MR. WALTERS TO CARRY OUT THIS IMPORTANT TASK.
YOUR SECOND QUESTION CONCERNS THE ABILITY OF THE FIRST ASSISTANT ATTORNEY GENERAL TO MAKE REQUESTS FOR INVESTIGATIONS PURSUANT TO 74 Ohio St. 150.5(A)(2) (1990). PURSUANT TO THIS STATUTE, THE ATTORNEY GENERAL IS ONE OF THE NAMED OFFICERS WITH THE POWER TO REQUEST OSBI INVESTIGATIONS.
THE POSITION OF FIRST ASSISTANT ATTORNEY GENERAL IS A STATUTORILY CREATED POSITION. TITLE 74 Ohio St. 28 PROVIDES AS FOLLOWS:
"THE ATTORNEY GENERAL SHALL APPOINT A FIRST ASSISTANT ATTORNEY GENERAL, TO ASSIST HIM IN HIS EXECUTIVE AND OTHER DUTIES, WHICH ASSISTANT SHALL HAVE HAD NOT LESS THAN FIVE (5) YEARS' EXPERIENCE IN THE ACTIVE PRACTICE OF LAW. SUCH ASSISTANT SHALL TAKE THE CONSTITUTIONAL OATH OF OFFICE AND-FILE IT IN THE OFFICE OF THE SECRETARY OF STATE. IN THE ABSENCE OR DISABILITY OF THE ATTORNEY GENERAL, SUCH ASSISTANT MAY PERFORM THE DUTIES OF THE ATTORNEY GENERAL."
IT IS QUITE CLEAR FROM THIS EXPRESS STATUTORY LANGUAGE, THAT WHEN THE ATTORNEY GENERAL IS ABSENT FROM THE OFFICE, THAT THE FIRST ASSISTANT ATTORNEY GENERAL POSSESSES ALL OF THE POWERS AND DUTIES OF THE ATTORNEY GENERAL. IT IS THE POSITION OF THIS OFFICE THAT THIS NATURALLY INCLUDES THE ABILITY TO INITIATE INVESTIGATIONS WHEN THE ATTORNEY GENERAL IS ABSENT FROM THE OFFICE. THERE WOULD BE NO REASON WHY THE OSBI SHOULD LOOK BEHIND, OR OTHERWISE QUESTION, THE VALIDITY OF A REQUEST FOR INVESTIGATION SIGNED BY THE FIRST ASSISTANT.
(THOMAS L. SPENCER)