DEBORAH B. BARNES, JUDGE:
¶1 Plaintiff/Appellant Sharon Spane (Spane) appeals the trial court's
Judgment granting the motion for summary judgment of Defendant/Appellee Central
Oklahoma Community Action Agency (COCAA) on the basis that it lacks subject
matter jurisdiction because Spane failed to comply with the notice provisions of
the Governmental Torts Claims Act (GTCA), 51 O.S. 2011 §§ 151-172. Based on our
review, we affirm.
BACKGROUND
¶2 In February, 2012, Spane filed a petition alleging that in March, 2010,
her employment with COCAA was wrongfully terminated in retaliation for pursuing
a workers' compensation claim. In the proceedings that followed,1 COCAA asserted it is a
community action agency established pursuant to 74 O.S. 2011 §§ 5035-5040, and,
therefore, that it constitutes a "political subdivision" under the GTCA. It
argued that Spane, who was the Deputy Director of COCAA, was therefore required
to present notice of her claim within one year of the date of termination
pursuant to the notice requirements of the GTCA. COCAA argued that because Spane
failed to present such notice, the trial court lacked subject matter
jurisdiction.
¶3 In response, Spane asserted, among other matters, that COCAA was never
properly established as a community action agency, and, therefore, the GTCA does
not apply.
¶4 A hearing was held in August, 2013, on COCAA's motion for summary judgment
and Spane's motion for partial summary judgment.2 At the hearing, COCAA discussed the
evidence it had produced in support of its assertion that it is a properly
established community action agency, and that it has been so for many years.
Spane countered that although employees of the Oklahoma Department of Commerce
(ODOC) may believe COCAA to be a community action agency, and although COCAA may
receive funds from ODOC as a community action agency, that ODOC has failed to
properly designate COCAA as a community action agency because it has never
issued a "formally entered and recorded" designation. Spane implied at the
hearing, moreover, that no entities in Oklahoma - regardless of whether they
function as community action agencies and receive block grant funds as community
actions agencies - are properly established pursuant to 74 O.S. 2011 §§
5035-5040 because "there is no document that exists anywhere that reflects that
[ODOC] designated in terms of issuing a designation to any agencies as Community
Action Agencies." Spane stated: "The issue is did [ODOC] do what they were
supposed to."
¶5 COCAA responded at the hearing that
[Spane's] argument is with the state legislature. The state legislature
left it to ODOC to establish [its] process. ODOC has spoken. [It has]
established that process, and in fact, [it] distributed funds pursuant to
those processes consistent with Sections 5035 and through 5040 of Title
74.
But really the bottom line here . . . is [ODOC], an agency of the State
of Oklahoma through its general counsel[,] has spoken and said that [COCAA
is] designated as a Community Action Agency, and ODOC's corporate legal
representative also stated the same exact thing under penalty of
perjury.
[Spane is] taking issue with ODOC in whether or not [ODOC is] doing [its]
job right, that's not the issue that's before the Court. [Spane] can take
that up with the state legislature. As the process stands now everything has
been done to satisfy statutorily what is required of ODOC. ODOC has spoken
in absolutely unequivocal . . . terms.
¶6 At the end of the hearing, the trial court expressed concern "about the
fact that the process seems to be very informal for those designations," but
stated that the statutes "really [do not] say what that process should be.
Counsel [for COCAA] is correct, there is nowhere in there where it says after
you get a certificate you are designated, or after we do something in writing
you are designated." The trial court ultimately determined that "the [GTCA] does
apply, and therefore, I do not have subject matter jurisdiction." The trial
court's determination was memorialized in its Judgment filed in September,
2013.
¶7 From the Judgment, Spane appeals.
STANDARD OF REVIEW
¶8 An order sustaining summary judgment in favor of a litigant presents
solely a legal matter. Feightner v. Bank of Oklahoma, N.A., 2003 OK 20, ¶ 2, 65 P.3d 624. Questions of law
mandate application of the de novo standard of review, which affords this
Court with plenary, independent, and non-deferential authority to examine the
issues presented. Martin v. Aramark Servs., Inc., 2004 OK 38, ¶ 4, 92 P.3d 96.
¶9 Examination of an order sustaining summary judgment requires Oklahoma
courts to determine whether the record reveals disputed material facts or
whether reasonable minds could draw different conclusions from undisputed facts.
Cranford v. Bartlett, 2001 OK
47, ¶ 3, 25 P.3d 918. All
facts and inferences must be viewed in the light most favorable to the party
opposing summary adjudication. Estate of Crowell v. Bd. of Cnty. Comm'rs of
Cnty. of Cleveland, 2010 OK
5, ¶ 22, 237 P.3d 134. If
the essential fact issues are in dispute, or reasonable minds might reach
different conclusions in light of the inferences drawn from undisputed facts,
summary judgment should be denied. Schovanec v. Archdiocese of Okla.
City, 2008 OK 70, ¶ 39, 188 P.3d 158.
¶10 Finally, "interpretation of statutory law presents a question
of law and statutes are construed to determine legislative intent in light of
the general policy and purpose that underlie them." Troxell v. Okla. Dep't of
Human Servs., 2013 OK 100, ¶
4, 318 P.3d 206 (citation
omitted).3
ANALYSIS
I. COCAA's Status as a Political Subdivision Under the
GTCA
¶11 The GTCA provides as follows:
A. The State of Oklahoma does hereby adopt the doctrine of sovereign
immunity. The state, its political subdivisions, and all of their employees
acting within the scope of their employment, whether performing governmental
or proprietary functions, shall be immune from liability for torts.
B. The state, only to the extent and in the manner provided in this act,
waives its immunity and that of its political subdivisions. . .
.
51 O.S. 2011 § 152.1. The GTCA
further provides that "[t]he liability of the state or political subdivision
under [the GTCA] shall be exclusive . . . ." § 153(B).
¶12 The GTCA requires, first of all, that "claims against the state or a
political subdivision are to be presented within one (1) year of the date the
loss occurs. A claim against the state or a political subdivision shall be
forever barred unless notice thereof is presented within one (1) year after the
loss occurs." § 156(B). The Oklahoma Supreme Court has explained that "the
notice provisions contained in the GTCA are to protect governmental interests by
promoting prompt investigation, repair of dangerous conditions, [and] speedy
settlement of meritorious claims, and to give the governmental entity time to
meet possible fiscal liabilities." Pellegrino v. State ex rel. Cameron
Univ., 2003 OK 2, ¶ 17, 63 P.3d 535 (emphasis omitted).
¶13 It is undisputed that Spane failed to comply with the notice provisions
of the GTCA. In fact, Spane admits that she never filed "a GTCA notice," and
argues, instead, that "none was required" because COCAA is not a political
subdivision under the GTCA.
¶14 As indicated above, "'[p]olitical subdivision' means: . . . for purposes
of [the GTCA] only, any community action agency established pursuant to Sections
5035 through 5040 of Title 74 of the Oklahoma Statutes[.]" 51 O.S. 2011 § 152(11)(n). In
support of its assertion that it is a community action agency established
pursuant to the applicable statutes, COCAA has attached a letter from Donald R.
Hackler, Jr. (Hackler), the Deputy General Counsel and Public Information
Officer of ODOC, in which he states:
The service area for [COCAA] was designated by [ODOC] even before I
joined the Agency in 1990.
. . . .
Annually [COCAA] receives federal
and state funds from our offices to support [its] programs and services.
Only community action agencies designated by [ODOC] can receive these
funds.
¶15 COCAA has also attached an affidavit of Hackler,4 in which he states, "I am responsible
for all legal matters concerning [ODOC], and oversight of federally funded
programs. Additionally, I am aware of what is required of community action
agencies related to designation." He further states as follows:
6. In 1964, President Lyndon Johnson signed into law the Economic
Opportunity Act that created the nationwide Community Action Network.
Subsequently, COCAA, a private, non-profit corporation was formed in 1968.
At the time of COCAA's formation, oversight was provided by the Oklahoma
Department of Economic and Community Affairs ("DECA").
7. In 1986, ODOC was created by the Oklahoma legislature. As a result,
all powers . . . and obligations of DECA were transferred to ODOC.
8. Also in 1986, a new set of sections to Title 74 of the Oklahoma
Statutes were promulgated dealing with community action agencies. These
sections remain in effect.
9. Section 5036 of Title 74 defines a community action agency as a
"public or private nonprofit agency, designated by [ODOC]." Additionally it
provides that ODOC has the right to evaluate existing agencies, as may be
necessary, and/or rescind designation in accordance with statutory
procedures.
10. ODOC is solely responsible for designating community action agencies.
There is no certification or certificate issued to designated community
action agencies.
. . . .
12. Since 1968, COCAA has continually been
designated, originally by DECA, and since 1986 by ODOC, as a community
action agency pursuant to . . . § 5036. It is the designated community
agency for prov[id]ing services to Oklahomans in Cleveland, Pottawatomie,
Lincoln, Payne and Logan Counties.
13. Consistent with [§] 5035, COCAA has been an annual community action
agency recipient of federal Community Service Block Grant Funds for which
ODOC maintains administrative responsibility. . . .
14. COCAA's purpose and board make-up are consistent with . . . §§ 5034,
5037.
15. ODOC monitors COCAA on, at a minimum, an annual basis.
16. ODOC has never rescinded COCAA's designation as a community action
agency.
¶16 COCAA also attached excerpts from a deposition transcript of William
Vaughn Clark (Clark), the Director of Community Services at ODOC. Clark states
that COCAA was in existence in Oklahoma, and designated, as a community action
agency prior to the formation of ODOC; that ODOC monitors the community action
agencies in Oklahoma and "the annual monitoring has not indicated that [COCAA]
should be de[-]designated at any point"; that termination of the community
action agency status for COCAA has never been recommended; that ODOC has
continually recognized COCAA as a community action agency; that qualifying for
community block grant dollars by meeting "certain rules," including "the unique
formation of their board," constitutes being designated a community action
agency; and that there is no formal certificate bestowed by ODOC for designation
purposes.
¶17 Among other things, COCAA has also attached House appropriations bills
which list COCAA as a community action agency to receive funding, and COCAA has
attached two community services block grant allocation agreements, between COCAA
and ODOC, setting forth the amount of funds to be allocated, the funding period,
the source of the funds, and the project description: "Reduce the causes of
poverty through advocacy and institutional change, while lessening its effects
on low-income people through delivery of direct services."
¶18 COCAA has presented ample evidence in support of its assertions that it
is a properly established community action agency in Oklahoma; that it has been
established as a community action agency in Oklahoma for decades; and that
designation as a community action agency does not hinge on the existence of a
hypothetical certificate of designation. As indicated above, Spane attempts to
dispute COCAA's status as a properly established community action agency by
asserting that ODOC has failed to establish an appropriate process for
designating community action agencies pursuant to the controlling statutory
provisions.
¶19 The statutory language upon which Spane relies provides as follows:
A community action agency shall be defined as a public or private
nonprofit agency, designated by [ODOC].
[ODOC] shall have the right to evaluate existing service areas and
community action agencies and, as may be necessary, modify boundaries of the
service areas or rescind designation in accordance with the
provisions outlined in Section 45 of this act so that services will be
adequately and efficiently provided.
74 O.S. 2011 § 5036 (emphasis
added). Section 5038 further provides that, "[t]o ensure statewide delivery of
Community Services Block Grant services, [ODOC] shall establish a process to
designate community action agencies."
¶20 The Legislature chose not to dictate to ODOC precisely how it is to
designate, or rescind the designation, of community action agencies. Although
the Legislature has directed ODOC to "establish a process to designate community
action agencies," Spane has failed to explain how the series of actions,
monitoring, and rule enforcement functions performed by ODOC fails to constitute
such a "process." Spane has also failed to explain how this series of actions,
which relies, among other things, on annual monitoring of community action
agencies, rather than on a "formally entered and recorded" certificate process
as proposed by Spane, fails to carry out the legislative intent of the statutory
provisions in question. Furthermore, "[s]tatutory construction by agencies
charged with the law's enforcement is given persuasive effect especially when
made shortly after the statute's enactment." Cox v. State ex rel. Okla. Dep't
of Human Servs., 2004 OK 17,
¶ 22, 87 P.3d 607 (footnote
omitted).
Great weight is to be accorded the expertise of an administrative agency,
and a presumption of validity attaches to the exercise of expertise when the
administrative agency is reviewed by a court. A court should not substitute
its own judgment for that of an agency, particularly in the area of
expertise which the agency supervises.
Toxic Waste Impact Grp., Inc. v. Leavitt, 1988 OK 20, ¶ 12, 755 P.2d 626 (footnote omitted).
¶21 We conclude that to determine COCAA and, indeed, all other community
action agencies, have not been properly established and officially recognized
because ODOC, from its inception, has chosen to rely upon an informal, flexible
system of designating community action agencies5 would constitute a needless intrusion
into ODOC's area of expertise, especially given the fact that the Legislature
has left the degree of formality, and all other details of the designation (and
de-designation) process, in the hands of ODOC. Because Spane has not produced
any evidence controverting COCAA's status as a long-established community action
agency in Oklahoma, and because an informal, flexible process of designation is
not inconsistent with the statutes in question, we conclude that no genuine
disputes of material fact exist in this case as to COCAA's status as a properly
established community action agency.
¶22 Because there is no genuine dispute as to COCAA's status as a community
action agency established pursuant to the applicable statutes, it follows that
COCAA is a political subdivision under § 152(11)(n) of the GTCA. Therefore,
Spane was required to comply with the notice provisions of the GTCA. Because it
is undisputed that Spane failed to do so, the trial court properly determined it
lacked jurisdiction over the tort claim of retaliatory discharge set forth in
Spane's petition, and it properly granted summary judgment in favor of COCAA.
See Hall v. GEO Grp., Inc., 2014 OK 22, ¶ 1, 324 P.3d 399 ("The notice required
by the GTCA is a mandatory prerequisite jurisdictional requirement to
filing a claim for tort damages.") (emphasis added) (footnotes omitted);
Harmon v. Cradduck, 2012 OK
80, ¶ 28, 286 P.3d 643
("Notice is a jurisdictional prerequisite to bringing an action under the
GTCA.") (emphasis added) (citation omitted); Shanbour v. Hollingsworth,
1996 OK 67, ¶ 7, 918 P.2d 73 ("[J]udicial power is
invoked by the timely filing of the governmental tort claims action pursuant to
§ 157[.]") (footnote omitted).
II. Spane's Application to Supplement the Issues on
Appeal
¶23 In January, 2014, during the pendency of this appeal, Spane filed an
application to supplement the issues on appeal. Spane seeks to raise an issue
for the first time on appeal - whether article 5, section 51 of the Oklahoma
Constitution "prohibits the granting of immunity to private entities."6 Spane requests
that this Court grant leave to allow her to file a supplemental brief on this
issue, which she asserts "is a new issue which surfaced in" Coates v.
Fallin, 2013 OK 108, 316 P.3d 924, a case decided during
the pendency of this appeal. However, the only issue addressed in Coates
was whether the Legislature, in enacting the Administrative Act which replaced
the Workers' Compensation Code, "acted outside its constitutional authority by
enacting a bill containing multiple subjects in violation of the Okla. Const.
art. 5, § 57." Id. ¶ 2. The Coates Court concluded the Legislature
did not act outside its authority in this regard.
¶24 Spane fails to mention in her application that the citation is contained
only in the concurring in part, dissenting in part, separate opinion of one
Justice. In that separate opinion, moreover, the constitutional language in
question is merely paraphrased: "[T]he legislature is prohibited from granting
any exclusive immunities to any association, corporation or individual by
Article 5, § 51 of the Oklahoma Constitution." Coates, ¶ 10 (Reif,
V.C.J., concurring in part, dissenting in part). Clearly, Spane could have
raised a constitutional challenge based on article 5, section 51 of the Oklahoma
Constitution prior to the date Coates was decided, and during the
proceedings below.
¶25 Regardless, article 5, section 51 of the Oklahoma Constitution "was
intended to preserve equality between citizens who are similarly situated."
In re Okla. Dev. Fin. Auth., 2004 OK 26, ¶ 20, 89 P.3d 1075 (citing Kimery v.
Pub. Serv. Co. of Okla., 1980 OK
187, 622 P.2d 1066). "Thus,
the clause may be invoked by a person who suffers injury because the legislature
has granted an exclusive right, privilege, or immunity to other persons
similarly situated." City of Moore, Okla. v. Atchison, Topeka, & Santa Fe
Ry. Co., 699 F.2d 507, 511 (10th Cir. 1983). Because COCAA has not been
granted any right, privilege, or immunity denied to other similarly situated
community action agencies, article 5, section 51 of the Oklahoma Constitution
does not apply to the present case.7 We deny Spane's application.
CONCLUSION
¶26 Based on our review, we conclude that no genuine disputes of material
fact exist and that the trial court properly determined it lacks jurisdiction
based on Spane's failure to comply with the notice provisions of the GTCA.
Consequently, we affirm.
THORNBRUGH, J., and FISCHER, J. (sitting by designation), concur.