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Question Submitted by: The Honorable Mike Combs, Oklahoma State Senate
1981 OK AG 184
Oklahoma Attorney General
Cite as: 1981 OK AG 184, __ __
¶0 The Attorney General has received your request for an official opinion, wherein you ask:
“1. Does the Open Meetings Act, requirements of open public records, competitive bidding law, and other such requirements of municipalities extend to a private, non-profit corporation operating public property on behalf of and in consideration received from a municipality?
“2. Does the Open Meetings Act, requirements of open public records, competitive bidding laws, and other such requirements of municipalities extend to a private non-profit corporation operating and maintaining public property under a lease agreement reciting no consideration?”
¶1 Attorney General Opinion No. 80-215 states that the Open Meeting Act, 25 O.S. 301 (1977) et seq., applies to nonprofit corporations operating public property under contract with municipalities. Whether consideration is received by the nonprofit corporation is immaterial.
¶2 Attorney General Opinion No. 81-130 is dispositive of the applicability of the Competitive Bidding Act of 1974, as amended, 61 O.S. 101 (1974) et seq., to nonprofit corporations operating public property under contract with municipalities.
¶3 Whether consideration is received by the nonprofit corporation is immaterial. In the absence of a charter provision permitting a municipality to delegate to a nonprofit corporation its power to improve public property, a municipality may not contract with such nonprofit corporation in such a manner as to delegate to it the power to contract for such improvements. State competitive bidding laws, in particular 61 O.S. 101 et seq., may apply to a nonprofit corporation where a municipality has lawfully delegated its power to contract for improvements to public property, under the conditions set forth in Atty: Gen. Opin. No. 80-130. That Opinion indicated that the applicability of such state competitive bidding laws was ultimately a question of fact, depending upon a resolution of potential conflicts between the state law and charter provisions, if any, dealing with awarding contracts for public improvements and a determination of whether such charter provisions concern purely municipal affairs or affect a wider state interest. See United States Elevator Co. v. City of Tulsa, Okl., 610 P.2d 791 (1980). If no conflicts exist, the state law will apply in each instance.
¶4 The applicability of municipal charter or ordinance provisions concerning open meetings, public records or competitive bidding presents questions of fact unique to each charter or ordinance provision, which may be involved. Your questions respecting the applicability of municipal requirements cannot be answered as a matter of law, because of the wide variations that may exist in such charter or ordinance provisions.
¶5 You also inquire whether state laws pertaining to public records would apply to nonprofit corporations operating public property with and without consideration. Again, whether consideration is received by a nonprofit corporation for its services is immaterial. Title 51 O.S. 24 (1971) is the general state statute pertaining to accessibility of public records. This statute provides:
“It is hereby made the duty of every public official of the State of Oklahoma, and of its subdivisions, who are required by law to keep public records pertaining to their said offices, to keep the same open for public inspection for proper purposes, at proper times and in proper manner, to the citizens and taxpayers of this State, and its sub-divisions, during all business hours of the day;. . .” (Emphasis added)
¶6 Municipalities are, of course, subdivisions of the State. City of Tulsa v. Wheetley, 187 Okl. 155, 101 P.2d 834 (1940). Therefore, 51 O.S. 1971, 24 applies to municipalities. In State ex rel. Cartwright v. Oklahoma Industries Authority, 52 O.B.A.J. No. 17, p. 1013 (May 2, 1981), the Supreme Court stated:
“Writings coming into the hands of public officers in connection with their official functions should, therefore, be accessible to members of the public 80 that the public will have an opportunity to determine whether those who have been entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants.” (Emphasis added)
¶7 Private, nonprofit corporations, as posited in your question, which have entered into contractual arrangements with municipalities to operate or maintain public property for and on behalf of such municipalities “have been entrusted with the affairs of the govern ment.” Especially is this so where the contract vests discretion in the nonprofit corporation to possess and operate public property for a joint purpose of the municipality and the nonprofit corporation.
¶8 Citing MacEwan v. Holm, Or., 359 P.2d 413 (1960), in State ex rel. Cartwright v. Oklahoma Industries Authority, supra, the Supreme Court said:
“Like our sister jurisdiction, we find that the purposes to be served by requiring that the public have access to records of public trusts are broad, and the scope of that access should be correspondingly broad.”
¶9 Statutes are to be given a sensible construction, bearing in mind the evils intended to be avoided or the remedy afforded. AMF Tubescope Company v. Hatchel, Okl., 547 P.2d 374 (1976); State ex rel. Cartwright v. Oklahoma Industries Authority, supra. Title 51 O.S. 24 (1971) should be liberally construed to accomplish that important public purpose.
¶10 Records pertaining to the operation or maintenance of public property are public records, regardless of who generates those records or who is the custodian thereof To find otherwise would permit public officials to abdicate to private parties their duties with respect to keeping records concerning such matters and would place such records beyond the reach of interested members of the public desiring to become informed upon matters pertaining to the operation and maintenance of public property. Title 51 O.S. 24(1971) guarantees public access to such records. The application of the statute is not dependent upon the identity of the custodian of the records. Section 24 specifically makes it “the duty of every public official” to keep his records open for public inspection. It is, therefore, incumbent upon the officers of a municipality contracting with a private nonprofit corporation for the operation and maintenance of public property to take such steps as are necessary to compel that nonprofit corporation to keep the aforementioned records open for public inspection in strict compliance with 51 O.S. 24 (1971).
¶11 It is, therefore, the official opinion of the Attorney General that:
1. The Open Meeting Act, 25 O.S. 301 (1977) et seq., applies to meetings of the officers of a nonprofit corporation operating public property under contract with a municipality, where matters to be discussed or taken up concern the administration of the contract or the operation, improvement or maintenance of such public property;
2. A municipality may not lawfully delegate to a nonprofit corporation its power to make improvements to or contract for improvements to public property, unless a charter provision expressly permits such delegation;
3. In the event a municipal charter provision permits a municipality to delegate to a nonprofit corporation its power to contract for improvements to public property, the provisions of the Public Competitive Bidding Act of 1974, 61 O.S. 101(1974) et seq., must be followed by the nonprofit corporation in contracting for such improvements, provided the municipality has no charter provisions dealing with the advertisement, bidding and awarding of contracts for public improvements. If such charter provisions exist and conflict in any way with requirements of state competitive bidding laws, the applicability of the state laws will depend upon a determination of whether the conflicting charter provisions concern purely municipal affairs or affect a wider state interest. Such an inquiry presents a question of fact.
4. Where a municipality has contracted with a nonprofit corporation to operate public property, records pertaining to the operation, maintenance or improvement of such property or the administration or performance of the contract are public records open for public inspection, even though such records may be kept and maintained in the custody of the nonprofit corporation. Title 51 O.S. 24 (1971).
JAN ERIC CARTWRIGHT
ATTORNEY GENERAL OF OKLAHOMA
FLOYD W. TAYLOR
FIRST ASSISTANT ATTORNEY GENERAL