Question Submitted by: The Honorable Arthur Hulbert, State Representative, District 14
2014 OK AG 9
Decided: 09/15/2014
Oklahoma Attorney General Opinions
Cite as: 2014 OK AG 9, __ __
¶0 This office has received your request for an official Attorney General
Opinion in which you ask, in effect, the following question:
Does
19 O.S.Supp.2013, § 421.2 prohibit
a board of county commissioners from declaring county-owned real property as
surplus to the needs of the county during the time period beginning 30 days
before the filing period for any election of a county commissioner and ending
the day after a county commissioner is sworn in?
Introduction
¶1 Before turning to your question, we provide a
brief summary of the powers granted to a board of county commissioners under
Oklahoma law regarding the administration of county-owned property.
¶2 It is well established that counties within
Oklahoma are "involuntary, subordinate political subdivision[s] of the
state," Herndon v. Anderson, 25 P.2d 326, 329 (Okla. 1933), that may exercise only
those powers that have been granted to them by statute. Tulsa Exposition
& Fair Corp. v. Bd. of Cnty. Comm'rs, 468 P.2d 501, 507 (Okla. 1970) (citing Johnston v.
Conner, 236 P.2d
987 (Okla. 1951) and Herndon, 25 P.2d at 329). A county exercises its
statutory authority through an elected board of county commissioners. See
19 O.S.2011, §
3.
Like the counties themselves, "Boards of County Commissioners derive their
powers and authority wholly from the statutes, and acts performed by them must
be done pursuant to authority granted by valid legislative action." Tulsa
Exposition & Fair Corp., 468 P.2d at 508. However, a board's authority
also includes powers that are "necessarily or fairly implied or incidental to
the powers expressly granted." See Shipp v. Se. Okla. Indus. Auth.,
498 P.2d 1395, 1398 (Okla. 1972).
¶3 Among the powers specifically granted to counties by statute is a broad
authority to administer property belonging to the county. For instance, counties
are empowered to "purchase and hold real and personal estate for the use of the
county." 19 O.S.2011, §
1(2). Similarly, counties may "sell and convey any real or personal estate
owned by the county, and make such order respecting the same as may be deemed
conducive to the interests of the inhabitants[.]" Id. § 1(3). As noted
above, this broad authority is exercised on behalf of the county by its board of
county commissioners, but county commissioners also have specific statutory
authority to, among other things, "make all orders respecting the real property
of the county." Id. § 339(A)(1).
¶4 In order to sell county-owned property a board of county commissioners, in
most cases, must comply with the procedures set forth in Section 421.1 of Title
19. For county-owned "tools, apparatus, machinery or equipment" for which the
original cost exceeded $500, the statute requires a sealed bid procedure or
public auction, with limited exception for property used as a trade-in for the
purchase of similar property. See 19 O.S.Supp.2013, § 421.1(A)-(F). For county-owned
land, Section 421.1 authorizes county commissioners to "sell real property
belonging to the county without declaring such property surplus" only after a
number of conditions, including a certified appraisal and sealed bid process,
have been satisfied.1 Id. § 421.1(G).
¶5 For property that has been deemed by the board of county commissioners as
surplus to the needs of the county, the Legislature established separate
procedures to sell or otherwise transfer real and personal property. For
surplus real property, Section 349(B) of Title 19 permits county commissioners
to transfer such lands to a municipality if the lands are located within the
municipality's corporate limits. That section provides, in pertinent part, as
follows:
The county commissioners of counties of the State of Oklahoma are hereby
authorized and empowered to execute deeds of conveyance of such lands as are
owned by the counties within the corporate limits of any city or town providing
such lands are deemed by the county commissioners of the county to be surplus to
the needs of the county. Any such lands so conveyed may be used by such city or
town for any purpose authorized by law or conveyed by such city or town in any
manner authorized by law.
19 O.S.2011, § 349(B). For surplus
machinery, equipment and vehicles, Section 421.2 of Title 19 permits a board,
subject to certain conditions, to transfer such property to political
subdivisions of the state. See 19 O.S.Supp.2013, § 421.2.
Analysis
¶6 Your question seeks clarification as to whether Section 421.2 limits the
ability of county commissioners to declare county-owned real property as
surplus. Section 421.2 provides, in pertinent part, as follows:
A unanimous vote of the board of county commissioners may transfer any
machinery, equipment or vehicle belonging to the county, which is deemed
by the board to be surplus, to a political subdivision of the state which is in
need of such machinery, equipment or vehicle. Upon such transfer, the
subject property shall be removed from the inventory of the county.
Except as otherwise provided in this section, the board of county commissioners
may not deem any property to be surplus during the period of time
beginning thirty (30) days before the filing period for any election of a county
commissioner and ending the day after a county commissioner is sworn in as such.
If the incumbent draws no opponent or if the incumbent county commissioner wins
reelection, either at the primary, special, or general election, the prohibition
of declaring county property or material surplus until the swearing in of county
officials shall be removed and the county may dispose of surplus property as
provided in this section.
19 O.S.Supp.2013, §
421.2 (emphasis added).
¶7 To determine whether Section 421.2's temporal limitation on declaring
county property as surplus applies to real property, we must look first to the
language of the statute itself. If that language is "plain and unambiguous and
its meaning clear," no further interpretation is necessary. TRW/Reda Pump v.
Brewington, 829 P.2d
15, 20 (Okla. 1992); see also Ledbetter v. Howard, 276 P.3d 1031, 1035 (Okla. 2012) ("If the [statutory]
language is plain and clearly expresses the legislative will, further inquiry is
unnecessary."). However, if the language is ambiguous or in conflict with other
statutory provisions, we must turn to the rules of statutory interpretation to
ascertain the intent of the Legislature in adopting the law. See
Ledbetter, 276 P.3d at 1035 (noting that "in cases of ambiguity or
conflict
rules of statutory construction [are] employed"); In re BTW,
241 P.3d 199, 205 (Okla. 2010) ("The
determination of legislative intent controls statutory interpretation . . .
.").
¶8 "The test for ambiguity in a statute is whether the statutory language is
susceptible to more than one reasonable interpretation." YDF, Inc. v.
Schlumar, Inc., 136 P.3d 656, 658 (Okla. 2006). In Section 421.2, the
use of the phrase "any property" in prohibiting county commissioners from
deeming county property as surplus in the time period surrounding elections
renders that provision ambiguous. Specifically, the use of the word "any" can be
interpreted to suggest that the prohibition applies to all
county-owned property, including real property. See Webster's Third New
International Dictionary 97 (1993) (defining "any" to mean, among other things,
"every" or "all"); see also JPMorgan Chase Bank, N.A. v. Specialty Rest.,
Inc., 243 P.3d
8,
14 (Okla. 2010) ("The term 'any' is all-embracing and means nothing less than
'every' and 'all.'"). On the other hand, the prohibition appears in a statutory
section that otherwise appears to apply only to county-owned machinery,
equipment and vehicles. Indeed, the transfer of surplus county-owned real
property is specifically addressed by separate statute. See
19 O.S.2011, §
349. Having found the language to be ambiguous, we look to the relevant
rules of statutory construction to determine the most reasonable
interpretation.
¶9 For two reasons, we conclude that the better reading of Section 421.2 is
that the temporal prohibition on declaring county property as surplus applies
only to machinery, equipment and vehicles. First, the interpretation of
ambiguous language cannot be accomplished in a vacuum. Rather, we must take into
account the relevant context in which the language is used. See Hogg v. Okla.
Cnty. Juvenile Bureau, 292 P.3d 29, 33 (Okla. 2012) ("In determining
legislative intent this Court will look at the context of any ambiguous
provisions and not limit our consideration to any one word or phrase.");
State v. Tate, 276 P.3d 1017, 1020 (Okla. 2012) ("Words and phrases of
a statute are to be understood and used not in an abstract sense, but with due
regard for context, and they must harmonize with other sections of the Act.").
Taking the whole of Section 421.2 in context, it makes more sense that the
limitation stated therein would apply only to the types of property referenced
specifically in that section. The first two sentences of that section refer
solely to the transfer of county-owned machinery, equipment and vehicles.
19 O.S.Supp.2013, §
421.2. Likewise, the statute identifies circumstances that would cause the
prohibition on declaring property as surplus to be lifted and permit the county
to "dispose of surplus property as provided in this section."
Id. (emphasis added). Of course, Section 421.2 provides only for the
disposal of surplus machinery, equipment and vehicles. Thus, in the otherwise
narrow context of Section 421.2, it would be an odd juxtaposition to insert a
broad temporal limitation on declaring any county property as
surplus.2
¶10 The second, and related, reason supporting this conclusion involves a
broader review of Title 19. Specifically, the transfer of surplus county lands
is explicitly addressed in a separate section of Title 19. Section 349(B)
permits county commissioners to convey surplus land to municipalities, much like
Section 421.2 permits such transfers for machinery, equipment and vehicles.
See 19 O.S.2011, §
349(B). Unlike Section 421.2, however, Section 349(B) does not include any
temporal limitation on the authority of a board of county commissioners to
declare such property as surplus. Section 349(B) was adopted in 1990, see
1990 Okla. Sess. Laws ch. 67, § 2, one year prior to the adoption of Section
421.2. See 1991 Okla. Sess. Laws ch. 155. We must assume that, at the
time it enacted Section 421.2, the Legislature was aware that the transfer of
surplus county-owned real property was addressed specifically in Section
349(B). See Williams v. Bailey, 268 P.2d 868, 872 (Okla. 1954) (noting the "general
rule of interpretation to assume that the legislature in the enactment of a
statute was aware of established rules of law applicable to the subject matter
of the statute" (quoting 50 Am. Jur. Statutes § 339)); see also State
ex rel. Dep't of Transp. v. OPUBCO, Inc., 50 P.3d 1146, 1149 (Okla. Civ. App. 2002). Yet the
Legislature chose not to amend Section 349(B) to include a temporal limitation
on declaring real property as surplus, but included such a limitation in Section
421.2, applicable to applicable to machinery, equipment and vehicles. We assume
that this omission is intentional. See Broadway Clinic v. Liberty Mut. Ins.
Co., 139 P.3d
873, 877 (Okla. 2006) ("Where a word or phrase is absent from a statute, we
must presume that its absence is intentional."); see also OPUBCO,
50
P.3d at 1149 ("Legislative silence, when it has authority to speak, may be considered
as giving rise to an implication of legislative intent." (quoting City of
Duncan v. Bingham, 394 P.2d 456, 460 (Okla. 1964))).
¶11 It is, therefore, the official Opinion of the Attorney General that:
Title 19 O.S.Supp.2013, §
421.2 does not prohibit a board of county commissioners from declaring
county-owned real property as surplus to the needs of the county during the time
period beginning 30 days before the filing period for any election of a county
commissioner and ending the day after a county commissioner is sworn
in.
E. SCOTT PRUITT
Attorney General of Oklahoma
Ethan Shaner
Assistant Attorney General
FOOTNOTES
1 In other limited
circumstances not relevant here, a board of county commissioners may sell or
otherwise transfer real property belonging to the county without declaring it
surplus or complying with the procedures of Section 421.1(G). See
19 O.S.2011, §§
339.1, 342, 349(C).
2 This conclusion is also consistent with the doctrine of
noscitur a sociis, by which the meaning of an ambiguous term used in a
statute may be ascertained by reference to the meaning of words associated with
it. See Sullins v. Am. Med. Response of Okla., Inc., 23 P.3d 259, 263 (Okla. 2001); see also 2A
Norman J. Singer, Sutherland Statutory Construction § 47.16 at 352-53 (7th ed.
2007) (noting that noscitur a sociis "in practical application means that
a word may be defined by an accompanying word, and ordinarily the coupling of
words denotes an intention that they should be understood in the same general
sense" (footnotes omitted)).
Citationizer© Summary of Documents Citing This Document
| Cite |
Name |
Level |
| None Found. |
Citationizer: Table of Authority
| Cite |
Name |
Level |
| Oklahoma Court of Civil Appeals Cases |
| | Cite | Name | Level |
| | 2002 OK CIV APP 72, 50 P.3d 1146, | STATE EX. REL. DEPT. OF TRANSPORTATION v. OPUBCO, INC. | Cited |
| Oklahoma Supreme Court Cases |
| | Cite | Name | Level |
| | 1992 OK 31, 829 P.2d 15, 63 OBJ 682, | TRW/Reda Pump v. Brewington | Cited |
| | 2001 OK 20, 23 P.3d 259, 72 OBJ 573, | SULLIN v. AMERICAN MEDICAL RESPONSE OF OKLAHOMA, INC | Cited |
| | 1954 OK 19, 268 P.2d 868, | WILLIAMS v. BAILEY | Cited |
| | 1933 OK 490, 25 P.2d 326, 165 Okla. 104, | HERNDON Judge v. ANDERSON et al. | Cited |
| | 1964 OK 165, 394 P.2d 456, | CITY OF DUNCAN v. BINGHAM | Cited |
| | 1970 OK 67, 468 P.2d 501, | TULSA EXPOSITION & FAIR CORP. v. BD. OF CO. COM'RS | Cited |
| | 1972 OK 98, 498 P.2d 1395, | SHIPP v. SOUTHEASTERN OKLAHOMA INDUSTRIES AUTH. | Cited |
| | 2006 OK 29, 139 P.3d 873, | BROADWAY CLINIC v. LIBERTY MUTUAL INSURANCE CO. | Cited |
| | 2006 OK 32, 136 P.3d 656, | YDF, INC. v. SCHLUMAR, INC. | Cited |
| | 2010 OK 65, 243 P.3d 8, | JPMORGAN CHASE BANK, N.A. v. SPECIALTY RESTAURANTS, INC. | Cited |
| | 2010 OK 69, 241 P.3d 199, | IN THE MATTER OF BTW | Cited |
| | 2012 OK 31, 276 P.3d 1017, | STATE v. TATE | Cited |
| | 2012 OK 39, 276 P.3d 1031, | LEDBETTER v. HOWARD | Cited |
| | 2012 OK 107, 292 P.3d 29, | HOGG v. OKLAHOMA COUNTY JUVENILE BUREAU | Cited |
| | 1951 OK 262, 236 P.2d 987, 205 Okla. 233, | JOHNSTON v. CONNER | Cited |
| Title 19. Counties and County Officers |
| | Cite | Name | Level |
| | 19 O.S. 349, | Conveyance of Lands to United States or Cities and Towns for Forest and Game Preserves, Parks, etc. | Discussed at Length |
| | 19 O.S. 1, | Organized Counties to be Empowered for the Following Purposes | Cited |
| | 19 O.S. 3, | County's Powers Exercised by Board of Commissioners - Certain Contracts Void by Individual Commissioner | Cited |
| | 19 O.S. 339.1, | Sale of County-Owned Property to Oklahoma Historical Society | Cited |
| | 19 O.S. 421.1, | Procedures for Sale of Certain County Property | Cited |
| | 19 O.S. 421.2, | Transfer of Surplus Machinery, Equipment, or Vehicles | Discussed at Length |
