Filed Date: 7/19/1999
Status: Precedential
Modified Date: 7/6/2016
Dear Representative Reese,
¶ 0 This office received your request for an official Opinion addressing, in effect, the following questions:
1. Are not-for-profit rural electric cooperatives eligible to purchase goods and services from the Department of Corrections?
2. Are not-for-profit rural electric cooperatives eligible to utilize inmate labor?
A. The Department of Corrections is authorized to purchase in the manner prescribed by law, facilities, equipment, raw materials and supplies, and to engage the supervisory personnel necessary to establish and maintain for this state at the penal institutions, now or hereafter under the control of the State Board of Corrections, industries and agricultural programs for the utilization of services of prisoners in the manufacture or production of such articles or products as may be needed for the construction, operation, maintenance or use of any office, department, institution or agency supported in whole or in part by this state and the political subdivisions thereof.
. . . .
D. All counties, cities, districts or political subdivisions, or any agency thereof, may purchase the goods or services produced by the prison industries of the Department of Corrections through their properly authorized purchasing authority, or they may place a direct order without competitive bid, with the prison industries of the Oklahoma Department of Corrections.
E. Not-for-profit corporations or charitable agencies chartered in Oklahoma or other states may purchase such goods and services. . . . All entities which contract with the state, its political units, its agencies, its public institutions, not for profit corporations or charitable agencies chartered in Oklahoma may purchase goods or services from the Department of Corrections which are used in the performance of such contracts. . . .
57 Ohio St. 549.1 (1998).
¶ 2 Rural electric cooperatives are organized under Title 18O.S. 437.1 which states:
Cooperative, nonprofit, membership corporations may be organized under this act for the purpose of supplying electric energy and promoting and extending the use thereof in rural areas. Corporations organized under this act and corporations which become subject to this act in the manner hereinafter provided are hereinafter referred to as "cooperatives".
¶ 3 Because rural electric cooperatives are not-for-profit corporations, they would be eligible to purchase inmate goods and services from the Department of Corrections.
¶ 5 For example, in Rice v. State,
¶ 6 Out of the decision that the State may constitutionally utilize convict labor came two distinct programs, the "Private Prison Industry" and the "Prisoners Public Work Act".1 Private Prison Industries are maintained inside a prison facility, while Public Work Acts involve transporting prisoners to public work sites.
To maintain such industries, factories, plants, shops, farms, and other enterprises and operations, hereinafter referred to as prison industries, at each institution as the State Board of Corrections deems necessary or appropriate to employ the prisoners or teach them skills, or to sustain the institution. . . . Any industry which employs prisoners shall be deemed a "State Prison Industry" if the prisoners are paid from state funds including the proceeds of goods sold as authorized by Section 123f of Title 74 of the Oklahoma Statutes. Any industry in which wages of prisoners are paid by a nongovernmental person, group, or corporation, except those industries employing prisoners in work-release centers under the authority of the Department of Corrections shall be deemed a "Private Prison Industry"[.]
57 Ohio St. 510(A)(4) (1998).
¶ 8 Private prison industries are subject to the rules of the Board of Corrections as well as to all laws governing employment, wages, and working conditions. 57 Ohio St. 545(A) (1998)
¶ 9 According to the Oklahoma Supreme Court, private prison industries are constitutional under Article XXIII, Section 2 because the State retains control over the inmates, which assures that inmates will not be subjected to cruelty at the hands of a private individual or corporation. See Rice,
¶ 10 Rural electric cooperatives, like any other non-governmental entities, would be eligible to contract with the Department of Corrections to develop a "Private Prison Industry" within a correctional facility.2 ¶ 11 Inmate labor may also be utilized through the "Prisoners Public Works Act." A public works project is described as:
[A] project that has been determined by the Board of Corrections to be of necessity for the public well-being conducive to rehabilitation and the reduction of recidivism among participating inmates by the written request of a majority of the board of county commissioners, the governing body of any municipality or any agency of the State of Oklahoma or of the United States or any subdivision thereof.
57 Ohio St. 216(2) (1998).
¶ 12 While operating under the Public Works Act, an inmate may not be assigned to work on private property except for public purposes. In other words, the work must be essentially public and for the general good of the inhabitants of the state or political subdivision. See 57 Ohio St. 222(A) and 57 Ohio St. 222(B) (1998). In addition, the inmate labor may not be used to reduce employees or replace regular maintenance or operations of the public entity. See 57 Ohio St. 510(A)(14) (1998).
¶ 13 As described in Title 18, Section 57 Ohio St. 437.1 supra, rural electric cooperatives provide electricity to rural areas. However, membership in an electric cooperative is exclusive. An individual must make specific agreements before being allowed to join a cooperative. By statute:
No person who is not an incorporator shall become a member of a cooperative unless such person shall agree to use electric energy furnished by the cooperative when such electric energy shall be available through its facilities. The bylaws of a cooperative may provide that any person . . . shall cease to be a member thereof if he shall fail or refuse to use electric energy made available by the cooperative. . . . Membership in the cooperative shall not be transferable, except as provided in the bylaws. The bylaws may prescribe additional qualifications and limitations in respect to membership.
18 Ohio St. 437.7(a) (1991).
¶ 14 Plainly stated, because rural electric cooperatives serve only their memberships, they do not meet the definition of a county, city, municipality, agency or political subdivision of the State of Oklahoma or of the United States. Hence, they are not eligible to apply for inmate labor for a Public Works Project.
¶ 15 It is, therefore, the official Opinion of the AttorneyGeneral that:
1. Under Oklahoma laws, 57 Ohio St. 549.1(E) (1998) and 18 Ohio St. 437.1 (1991), not-for-profit rural electric cooperatives may purchase goods and services from the Department of Corrections.
2. Under Oklahoma laws, 57 Ohio St. 510(A)(4), 57 O.S. 545(A), and 57 Ohio St. 549(A)(1) (1998), rural electric cooperatives could contract with the Department of Corrections to develop and maintain a Private Prison Industry; however, under Oklahoma laws 47 Ohio St. 216(2), 47 Ohio St. 222(A) (1998) and (B), and 18 Ohio St. 437.1 and 18 Ohio St. 437.7 (1991), rural electric cooperatives are not eligible for a Public Works Project because they are not public entities.
W.A. DREW EDMONDSON ATTORNEY GENERAL OF OKLAHOMA
BARBARA C. STONER ASSITANT ATTORNEY GENERAL