Question Submitted by: Mike Buhl, Chairman, Board of Trustees, Oklahoma Housing Finance Agency

2023 OK AG 13
CourtOklahoma Attorney General Reports
DecidedDecember 1, 2023
StatusUnpublished

This text of 2023 OK AG 13 (Question Submitted by: Mike Buhl, Chairman, Board of Trustees, Oklahoma Housing Finance Agency) is published on Counsel Stack Legal Research, covering Oklahoma Attorney General Reports primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Question Submitted by: Mike Buhl, Chairman, Board of Trustees, Oklahoma Housing Finance Agency, 2023 OK AG 13 (Okla. Super. Ct. 2023).

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OSCN Found Document:Question Submitted by: Mike Buhl, Chairman, Board of Trustees, Oklahoma Housing Finance Agency
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Question Submitted by: Mike Buhl, Chairman, Board of Trustees, Oklahoma Housing Finance Agency
2023 OK AG 13
Decided: 12/01/2023
Oklahoma Attorney General Opinions


Cite as: 2023 OK AG 13, __ __

¶0 This office has received your request for an official Attorney General Opinion in which you ask, in effect, the following questions:
1. Must the Oklahoma Housing Finance Agency ("OHFA") comply with the Central Purchasing Act, title 74, sections 85.1--85.44E of the Oklahoma Statutes ("CPA")?
2. Must the OHFA comply with the Oklahoma State Finance Act, title 62, sections 34--34.501 of the Oklahoma Statutes ("SFA")?
3. Must the OHFA comply with the provisions of title 61, sections 61--65 of the Oklahoma Statutes ("State Consultants Act" or "SCA"), regarding the state construction managers and consultants?

I.

SUMMARY

¶1 Generally, OHFA is exempt from the CPA, SFA, and SCA. Compliance with these statutes is mandatory if an entity is a "state agency," generally defined as an office or officer that is a part of the executive or judicial branch. The OHFA is a public trust whose beneficiary is the state, and its trustees are public officers. However, neither the OHFA nor its trustees are part of the executive branch. Accordingly, the OHFA and its trustees are not within the scope of the term "state agency" and, therefore, generally not subject to each of these statutes. Notwithstanding, the SFA includes specific provisions that require action by a public trust having the State of Oklahoma as its beneficiary, such as OHFA. Therefore, the OHFA must comply with these limited provisions of the SFA.

II.

BACKGROUND

A. Public Trusts in Oklahoma.

¶2 This office previously provided a thorough background on the history of Oklahoma's public trusts. See 2017 OK AG 4, ¶¶ 1--5. That background is incorporated into this opinion by reference. In summary, trusts for the benefit of the State, a county, or a municipality may be established under the Trusts for Furtherance of Public Functions provisions of Oklahoma law. See 60 O.S.2021, §§ 176--180.41; see generally M. Thomas Arnold, Public Trusts in Oklahoma, 19 Tulsa L.J. 192 (1983). Public trusts may be authorized to, among other things, "provide funds for the furtherance and accomplishment of any authorized and proper public function or purpose of the state[.]" 60 O.S.2021, § 176(A); see also Shotts v. Hugh, 1976 OK 73, ¶ 13, 551 P.2d 252, 254 ("Trusts for the benefit of the public may be established with a broad field of objectives as long as the objectives encompass a benefit to a large class of the public or lessen the burdens of government."). Beneficiaries may include the State of Oklahoma, its counties or municipalities, or any combination thereof. 60 O.S.2021, § 176(A). A state beneficiary public trust may engage in any activity in which the State has the power to engage. Application of S. Okla. Dev. Tr., 1970 OK 118, 470 P.2d 572.

¶3 Trustees govern public trusts and their affairs, and the trustees are appointed and removed by the governing body of the beneficiary. 60 O.S.2021, §§ 176(A), 176.1(B)(1). In cases where the State is the beneficiary, the Legislature and the Governor must approve the public trust, and the trust instrument must be approved as to form by the Attorney General. Id. §§ 176(A), 177. Public trusts are presumed to be entirely separate and distinct from the beneficiary. Id. § 176.1. In their operations, Oklahoma law provides:

Except where the provisions of the trust indenture or of Section 176 et seq. of this title, or of any other law written specifically to govern the affairs of public trusts, expressly requires otherwise, the affairs of the public trust shall be separate and independent from the affairs of the beneficiary in all matters or activities authorized by the written instrument creating such public trust including, but not limited to, the public trust's budget, expenditures, revenues and general operation and management of its facilities or functions . . . .

Id. § 176.1(D) (emphasis added).

B. The OHFA.

¶4 OHFA is a public trust created under title 60, section 176(A)(1), and by trust indenture executed on May 1, 1975. See also OHFA Third Amended Trust Indenture (Aug. 19, 2002) (on file with author) [hereafter, the Trust Indenture]. OHFA operates for the benefit of the State by fulfilling the public purposes outlined in the Trust Indenture. See Trust Indenture, supra at 1. Generally, the OHFA was established to provide adequate housing for the State's citizens and eliminate substandard housing. Shotts v. Hugh, 1976 OK 73, 551 P.2d 252. The Trust Indenture identifies some of the OHFA's purposes and powers as follows:

(6) to . . . supply services and facilities for the conservation and implement of the public welfare and protection and promotion of the public health to the [State] . . . to such extent and in such manner as now is or hereafter shall be a proper function of the [State] as or if expressly authorized by law for the furtherance of the general convenience, welfare, public health and safety of the State of Oklahoma and its inhabitants.
(7) To promote the development of industry and culture and industrial manufacturing, cultural, and educational activities within the territorial limits of the Beneficiary and to thereby provide industrial and cultural facilities and additional employment and activities which will benefit and strengthen culture and the economy of the Beneficiary.
. . . .
(9) To conduct planning and coordination studies for any and all phases of Oklahoma's economic life, problems, and activities deemed by the Trustees to be needful of attention and planning, and to study and analyze state policies as expressed in the statutes and administrative rulings, as they may affect Oklahoma's economic, agricultural, commercial, mining, oil and gas, housing and recreational, and industrial conditions and progress and to examine the operation of governmental functions, looking to improved coordination between state and local and between state and federal functions and activities, greater economy in operation, and improvement of services to the people of the State.
(10) To attract agricultural, commercial, industrial, mining, oil and gas, housing and recreational firms and businesses to the State by utilizing its funds, credit, and the talents of its staff and others in any and every progressive manner for such purpose.
. . . .

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Related

Indiana National Bank v. State Department of Human Services
857 P.2d 53 (Supreme Court of Oklahoma, 1993)
State Ex Rel. Williamson v. Garrison
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OKLAHOMA CTY. UTIL. SERV. AUTH. v. Corporation Comm'n
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