Opinion No. (2011)

Dear Executive Director Snodgrass,

¶ 0 This office has received your request for an official Attorney General Opinion in which you ask, in effect, the following questions:

1. Pursuant to 74 O.S.Supp. 2010, § 2276.1[74-2276.1], may the monies inthe Oklahoma State Park Trust Fund be used to pay administrativeexpenses other than those provided for in Section 2276.1(B)? 2. May the trustees of the Oklahoma State Park Trust Fund usemore than five percent (5%) of the principal contained in the TrustFund on an annual basis for the purposes set forthin 74 O.S.Supp. 2010, § 2276.1[74-2276.1](B)? 3. Is the income and investment return on Trust Fund principalrestricted either as to the amount to be used by the trustees on anannual basis or to the purposes set forthin 74 O.S.Supp. 2010, § 2276.1[74-2276.1](B)?

I. Background of the Oklahoma State Park Trust Fund ¶ 1 The Oklahoma State Park Trust Fund ("Trust Fund") was created by the Oklahoma Legislature in 2006, and the Oklahoma Tourism and Recreation Commission ("Commission") was designated by the Legislature as the trustees of the Trust Fund. See 2006 Okla. Sess. Laws ch. 67, § 2 (codified as amended at 74 O.S.Supp. 2010, § 2276.1[74-2276.1]).

¶ 2 The Trust Fund consists of two types of monies: (1) Trust Fund principal and (2) income and investment return on Trust Fund principal. The principal of the Trust Fund consists of:

Monies from any and all mineral lease payments, seismograph fees, royalty payments, or other payments associated with oil and gas mineral operations at state parks that are managed by the Oklahoma Tourism and Recreation Department, any funds appropriated or transferred to the Trust Fund by the Legislature, and any monies or other assets contributed to the Trust Fund from any other source, public or private.

74 O.S.Supp. 2010, § 2276.1[74-2276.1](D). The Trust Fund also contains monies which accrue from income and investment return on Trust Fund principal. Id. § 2276.1(E). Nothing in the statute requires that unused income and investment return on Trust Fund principal become part of the principal.

II. The Purposes for Which the Trust Fund Is to Be Used ¶ 3 The Legislature has specified the purposes for which the Commission may use monies contained in the Trust Fund. Title 74 O.S.Supp. 2010, § 2276.1[74-2276.1](B) requires the Commission to annually use the principal of the Trust Fund to:

1. Protect and conserve state park lands, but shall not include routine maintenance of the state parks;

2. Preserve historic properties under the jurisdiction of the Commission;

3. Provide for one-time capital upgrades and improvements of state park resources; and

4. Pay fees and expenses associated with the services of a custodian of the Trust Fund.

Id.

¶ 4 The Legislature also limited the use of income andinvestment return on Trust Fund principal, providing at 74 O.S.Supp. 2010, § 2276.1[74-2276.1](E) that such funds "shall accrue to the Trust Fund for use as provided by authorization ofthe trustees for the purposes listed in subsection B of thissection." Id. (emphasis added). The Legislature further provided in subsection E that "[e]xcept as provided for in subsection B of this section, no income or investment returnor principal shall be used for administrative expenses of the Oklahoma Tourism and Recreation Department or expenses incurred by the Commission in the administration of the Trust Fund."Id. (emphasis added).

¶ 5 "Legislative intent governs statutory interpretation and this intent is generally ascertained from a statute's plain language."State ex rel Dep't of Health v. Robertson,152 P.3d 875, 877-78 (Okla. 2004). "`The plain meaning of a statute's language is conclusive except in the rare cases when a literal construction would produce a result demonstrably at odds with legislative intent.'" BostonAve. Mgmt. Inc. v. Assoc. Res. Inc.,152 P.3d 880, 885 (Okla. 2007) (quoting Fulsom v. Fulsom,81 P.3d 652, 655 (Okla. 2003)). The plain language of subsections 2276.1(B) and (E) makes clear that the Legislature intended that the Commission, as trustees of the Trust Fund, uses the funds contained in the Trust Fund, including both principal and income and investment return on principal for the four enumerated purposes specified in the statute at subsection B. No trust funds are to be used for administrative expenses of the Oklahoma Tourism and Recreation Department or expenses incurred by the Commission in the administration of the Trust Fund unless those expenses are authorized by one of the enumerated provisions. 74 O.S.Supp. 2010, § 2276.1[74-2276.1](E).

¶ 6 The Legislature has provided an exception authorizing the Trust Fund to be used for administrative expenses as provided for in Section 2276.1(B). The only administrative expenses referred to in Section 2276.1(B) are the expenses associated with theservices of a custodian of the Trust Fund. Title 74 O.S.Supp. 2010, § 2276.2[74-2276.2](D) explains the requirements for a custodian of the Trust Fund. That section provides that "[f]unds and revenues for investment by the Commission shall be placed with a custodian selected by the Commission." Id. The statute specifically provides that "[p]ayment of any fees for the services of a custodian may be paid from the income and investment return on the Trust Fund." Id. "The custodian may be the State Treasurer or a bank or trust company offering pension fund master trustee and custodian services." Id.

¶ 7 Therefore, to answer your first question, all monies in the Trust Fund are to be used for the purposes set forth in Section 2276.1(B), and may not be used for general administrative expenses of the Oklahoma Tourism and Recreation Department or of the Commission. The funds, however, may be used for expenses associated with the services of a custodian of the Trust Fund. The income and investment return on principal may also be used for fees of a custodian. That custodian may be the State Treasurer or a qualified bank or trust company.

III. Restrictions on the Amount of Funds to Be Used ¶ 8 Your second question arises as a result of a 2007 legislative change to paragraph B of Section 2276.1 of Title 74 of the Oklahoma Statutes, as follows:

B. In addition to the revenues received from royalty payments as provided for in Section 3 of this act, the The Commission shall utilize not more than five percent (5%) of the principal of the Trust Fund annually to:

1. Protect and conserve state park lands, but shall not include routine maintenance expenses of the state parks;

2. Preserve historic properties under the jurisdiction of the Commission;

3. Provide for one-time capital upgrades and improvements of state park resources; and

4. Pay fees and expenses associated with the services of a custodian of the Trust Fund.

2007 Okla. Sess. Laws, ch. 106, § 3(B) (amending 74 O.S. Supp. 2006, § 2276.1[74-2276.1](B)).

A. Use of principal ¶ 9 In light of this amendment, you ask whether the legislative mandate to the Commission to "utilize five percent (5%) of the principal of the Trust Fund annually" sets a minimum amount the Commission shall use, allowing the Commission to annually use more than five percent (5%) of the Trust Fund principal for the purposes outlined in Section 2276.1(B). As stated above, legislative intent is gleaned from the plain terms of the statute. The wording of Section 2276.1(B) is clear and unambiguous and establishes the Legislature's intent that the Commission is required to annually use five percent (5%) of the Trust Fund principal for the enumerated purposes. The use of the term "shall" in the statute denotes a mandatory duty. Heirshberg, v. Slater,833 P.2d 269, 275 (Okla. 1992). Therefore, the Commission, as trustees of the Trust Fund, is required to use five percent (5%) and no more than five percent (5%) of the Trust Fund principal annually, for the enumerated purposes in subsection B.

B. Use of income and investment returns on principal ¶ 10 We must also consider whether the statute places restrictions on the Commission's use of the income and investment return on Trust Fund principal. Again, the plain wording of the statute determines our conclusion. The Legislature specifically provided at Section 2276.1(B) that "[t]he Commission shall utilize five percent (5%) of the principal of the Trust Fund annually to" fulfill the four enumerated purposes.Id. (emphasis added). The Legislature did not establish a limiting requirement on the use of income and investment return on Trust Fund principal. As to these monies, the Legislature provided only (1) that the use is limited to the purposes listed in Section 2276.1(B), and (2) that the monies could not be used for administrative expenses other than those provided for in Section 2276.1(B). Therefore, we conclude that the Commission is not limited in the amount of income and investment return on Trust Fund principal to be used, but is restricted to using these funds for the purposes set forth in Section 2276.1(B). These funds may not be used for administrative expenses of the Oklahoma Tourism and Recreation Department or the Commission, but may be used for expenses associated with the services of a custodian of the Trust Fund.

¶ 11 It is. therefore, the official Opinion of the AttorneyGeneral that:

1. The Oklahoma State Park Trust Fund consists of two types of monies: (1) Trust Fund principal and (2) income and investments return on Trust Fund principal. 74 O.S.Supp. 2010, § 2276.1[74-2276.1] (B), (E).

2. The purposes for which the Oklahoma State Park Trust Fund may be used are (1) to protect and conserve state park lands, (2) to preserve historic properties under the jurisdiction of the Commission, (3) to provide for one-time capital upgrades and improvements of state park resources, and (4) to pay fees and expenses associated with the services of a custodian of the Trust Fund. 74 O.S.Supp. 2010, § 2276.1[74-2276.1](B), (E).

3. The Commission as Trustee of the Fund is required to use five percent (5%) and no more than five percent (5%) of the principal of the Trust Fund annually for the purposes set forth in 74 O.S.Supp. 2010, § 2276.1[74-2276.1](B)(1)-(4).

4. Pursuant to 74 O.S.Supp. 2010, § 2276.1[74-2276.1] (E), the Commission is not limited in the amount of monies accrued from income and investment return on the Trust Fund principal that it may use, but must use these funds for the purposes set forth in 74 O.S.Supp. 2010, § 2276.1[74-2276.1](B).

5. No monies in the Trust Fund may be used for the administrative expenses of the Oklahoma Tourism and Recreation Commission or expenses incurred by the Commission in the administration of the Trust Fund. 74 O.S.Supp. 2010, § 2276.1[74-2276.1](E). However, Trust Fund monies may be used for expenses associated with the services of a custodian of the Trust Fund. Id. § 2276.1(B), (E). The custodian may be the State Treasurer, or a bank or trust company offering pension fund master trustee and master custodial services. Id. § 2276.2(D).

E. SCOTT PRUITT Attorney General of Oklahoma

WILLIAM F. O'BRIEN Assistant Attorney General