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Question Submitted by: The Honorable Bill Brewster, Oklahoma House of Representatives
1984 OK AG 189
Oklahoma Attorney General
Cite as: 1984 OK AG 189, __ __
¶0 The Attorney General has received your request for an official opinion asking, in effect:
Are commissions, such as the Peanut Commission, Soybean Commission and Wheat Commission, subject to the:
1. Open Meeting Act, 25 O.S. 301 et seq. (1981), as amended;
2. Open Records Act, 51 O.S. 24 (1981);
3. Central Purchasing Act, 74 O.S. 85.1 et seq. (1981), as amended; and
4. Administrative Procedure Act, 75 O.S. 301 et seq. (1981), as amended.
¶1 Your question concerns whether the provisions of the four acts listed above apply to commissions, primarily agricultural commissions, that are permitted by the Legislature to be formed after a vote by a majority of the producers of that commodity favoring the creation of such a commission. These commissions are funded entirely by an assessment charged per net ton, per bushel, or per head of animal, against the producers of that commodity. Examples of such commissions include the Peanut Commission, codified at 2 O.S. 1101 et seq. (1981), as amended, Soybean Commission, codified at 2 O.S. 1801 et seq. (1981), and the Wheat Commission, codified at 2 O.S. 1022 et seq. (1981), as amended.
¶2 In addressing your questions, we must first examine the nature of the fee charged against the producers of a particular commodity. Decisions in Oklahoma regarding the assessment fee have been few and far between. Only once has the Oklahoma Supreme Court addressed this issue. In Olustee Co-op. Ass’n. v. Oklahoma Wheat U.R. and M.D.C., 391 P.2d 216, 218 (Okl. 1964), the Court reviewed an assessment placed upon bushels of wheat marketed in the State of Oklahoma. The Court wrote:
“Defendant contends that the assessment is not a tax. We do not agree. In 51 Am.Jur. Taxation, 3, pp. 35, 36, 37 and 38, is the following language:
” ‘A tax is a forced burden, charge, exaction, imposition, or contribution assessed in accordance with some reasonable rule of apportionment by authority of a sovereign state upon the persons or property within its jurisdiction, to provide public revenue for the support of the government, the administration of the law, or the payment of public expenses. Any payment exacted by the state or its municipal subdivisions as a contribution toward the cost of maintaining governmental functions, where the special benefits derived from their performance is merged in the general benefit, is a tax. * * *’
“In 84 C.J.S. Taxation 1, par. b., page 34 is the following:
” ‘* * * The question whether a particular contribution, charge, or burden is to be regarded as a tax depends on its real nature, and, if it is in its nature a tax, it is not material that it may be called by a different name; * * *.’
“We determine that the proposed assessment would be a tax.” (Emphasis added).
¶3 In a more recent decision, a similar conclusion was reached by the Oregon Court of Appeals in Oregonians, Etc. v. Oregon State Dept., Etc., 641 P.2d 72 (Or. App.1982). The Oregon Court of Appeals examined the fund collected by the State Sheep Commission through an assessment on all wool sold through the commercial channels. The Oregon Court wrote:
“The Commission is a public body created by the legislature…. We hold that the funds collected pursuant to ORS 577.785 statutory authorization for assessment are public funds….” Id. at 73.
¶4 Thus, the assessment charged by such commissions against the producers of the particular commodity is a tax and considered public funds subject to all restrictions on the use of taxes.
“All meetings of public bodies, as defined hereinafter, shall be held at specified times and places which are convenient to the public and shall be open to the public, except as hereinafter specifically provided….”
¶6 Title 25 O.S. 304 (1984) defines “public body” as provided, in relevant part:
“1. ‘Public body’ means the governing bodies of all municipalities located within the State of Oklahoma, boards of county commissioners of the counties in the State of Oklahoma, boards of public and higher education in the State of Oklahoma and all boards, bureaus, commissions, agencies, trusteeships, authorities, councils, committees, public trusts, task forces or study groups in the State of Oklahoma supported in whole or in part by public funds or entrusted with the expending of public funds or administering public property, and shall include all committees or subcommittees of any public body ….” (Emphasis added).
¶7 As held in the Olustee case, the assessment charged is considered to be a tax used to provide public revenue for the support of government. As written earlier, these assessments received are placed in a special fund to be used to support the purpose and duties of the commission(s).
¶8 “Where the language [of a statute or ordinance] is plain and unambiguous and its meaning clear, the enactment will be accorded the meaning as expressed by the language therein employed.” Oklahoma Journal Pub. Co. v. City of Oklahoma City, 620 P.2d 452 (Okl. App. 1980). Thus, these commissions are subject to the provisions of the Open Meeting Act, 25 O.S. 301 et seq. (1981), as amended.
¶9 Title 51 O.S. 24 (1981) states, in pertinent part, that:
“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 subdivisions, during all business hours of the day; . . .” (Emphasis added).
¶10 “Public officer” has been defined in many Oklahoma cases. ” ‘An officer is one who is invested with some portion of the functions of the government to be exercised for the public benefit.’ Black’s Law Dictionary, 3d Ed., page 1286.” Sparks v. Board of Library Trustees of Carter County, 169 P.2d 201 (Okl. 1946).
¶11 Again, as stated in the Olustee case, the assessment is to provide public revenue “for the support of the government, the administration of the law or the payment of public expenses ….” Olustee, supra at 218. The members and/or employees of these commissions in the performance of their official duties are expending public revenue for the support of government and thus, invested with some portions of the functions of the government to be exercised for the public benefit. The members of these commissions are considered “public officers.”
¶12 Thus, these commissions and the officials are subject to the provisions of the Open Records Act, 51 O.S. 24 (1981).
“The terms ‘state agency’ and ‘agency’ shall include any office, officer, bureau, board, counsel, court, commission, institution, unit, division, body or house of the executive or judicial branches of the state government, whether elected or appointed, excluding only municipalities, counties and other governmental subdivisions of the state.”
¶14 Again, we note the rule of statutory construction in interpreting the meaning given plain and unambiguous language in a statute. See, Oklahoma Journal Pub. Co., supra. Clearly, these commissions are commissions within the definition of “state agency” and “agency,” as provided by 74 O.S. 85.2(2) (1981). Thus, these commissions are subject to the provisions of the Central Purchasing Act, 74 O.S. 85.1 et seq. (1981), as amended.
¶15 We acknowledge a previous Attorney General’s Opinion, No. 76-130, which held that these types of commissions (specifically the Oklahoma Peanut Commission) are State agencies and subject to the Oklahoma Central Purchasing Act. Also, this opinion held that when no State funds are being expended, contracts executed by these commissions are not subject to the provisions of the Central Purchasing Act, 74 O.S. 85.1 et seq. (1981), as amended.
¶16 The Administrative Procedure Act is provided at 75 O.S. 301 et seq. (1981), as amended. These statutes provide a definition of agencies covered by the Act plus a list of the institutions exempted by the Act. Title 75 O.S. 301(1) (1984) defines agency and lists the institutions exempted by law.
” ‘Agency’ is defined as:
“. . . any state board, commission, department, authority, bureau or officer authorized by the Constitution or statutes to make rules or to formulate orders, …” (Emphasis added).
¶17 Title 75 O.S. 301(2) (1984) defines “rule.” It states:
” ‘Rule’ means any agency statement of general applicability and future effect that implements, interprets or prescribes substantive law or policy, or prescribes the procedure or practice requirements of the agency. The term includes the amendment or repeal of a prior rule but does not include (A) the issuance, renewal or denial of licenses; (B) the approval, disapproval or prescription of rates; (C) statements concerning only the internal management of an agency and not affecting private rights or procedures available to the public; (D) interagency memoranda; or (E) declaratory rulings issued pursuant to 75 O.S. 308 of this title;”
¶18 “Order” is defined in 75 O.S. 301(6) (1984). This subsection states:
” ‘Order’ means all or part of the final or intermediate decision, whether affirmative, negative, injunctive or declaratory in form, by an agency in any matter other than rule making, or rulings or motions or objections made during the course of a hearing, or exclusions described in clauses (C) and (D) . . .”
¶19 We note the language used in several of the statutory provisions prescribing the powers and duties of these various commissions.
¶20 For instance, 2 O.S. 1029 (1981) of the “Oklahoma Wheat Resources Act” states, in pertinent part, that the Wheat Commission shall have the power to:
“5. Adopt such rules and regulations as are necessary to promptly and effectively administer the provisions of this act; . . .”
¶21 Likewise, 2 O.S. 1809 (1981) of the “Oklahoma Soybean Act” prescribes, in part, that the Soybean Commission shall have the power to:
“5. Adopt rules and regulations to effectively administer the provisions of this act; . . .”
¶22 Once again, applying the general rules of statutory construction, it is clear that these commissions are governed by the provisions of the Administrative Procedure Act, 75 O.S. 301 et seq. (1981), as amended, when making rules or formulating orders. Oklahoma Journal Pub. Co., supra.
¶23 It is, therefore, the official opinion of the Attorney General that the agricultural commissions, such as the Wheat Commission, codified at 2 O.S. 1022 et seq. (1981), as amended; the Peanut Commission, codified at 2 O.S. 1101 et seq. (1981), as amended; and the Soybean Commission, codified at 2 O.S. 1801 et seq. (1981), are subject to the provisions of the Open Meeting Act, 25 O.S. 301 et seq. (1981), as amended; the Open Records Act, 51 O.S. 24 (1981); Central Purchasing Act, 74 O.S. 85.1 et seq. (1981), when expending State funds; and the provisions of the Administrative Procedure Act, 75 O.S. 301et seq. (1981), as amended, when making rules and formulating orders.
MICHAEL C. TURPEN
ATTORNEY GENERAL OF OKLAHOMA
ASSISTANT ATTORNEY GENERAL