ATTORNEY GENERAL HENRY HAS ASKED THAT I RESPOND TO YOUR LETTER DATED JULY 6, 1989, REQUESTING AN INFORMAL OPINION CONCERNING PAYMENT OF A RETAINER BY THE FEDERAL DEPOSIT INSURANCE CORPORATION FOR YOUR LEGAL SERVICES.
CONCERNING EMPLOYMENT OF A LEGISLATOR, THE OKLAHOMA CONSTITUTION (ARTICLE V, SECTION 23) PROHIBITS A LEGISLATOR FROM SECURING, BY EMPLOYMENT, ANY INTEREST IN ANY CONTRACT WITH THE STATE AUTHORIZED DURING HIS OR HER TERM OF OFFICE. SPECIFICALLY, ARTICLE V, SECTION 23 PROVIDES AS FOLLOWS:
"NO MEMBER OF THE LEGISLATURE SHALL, DURING THE TERM FOR WHICH HE WAS ELECTED, BE APPOINTED OR ELECTED TO ANY OFFICE OR COMMISSION IN THE STATE, WHICH SHALL HAVE BEEN CREATED, OR THE EMOLUMENTS OF WHICH SHALL HAVE BEEN INCREASED, DURING HIS TERM OF OFFICE, NOR SHALL ANY MEMBER RECEIVE ANY APPOINTMENT FROM THE GOVERNOR, THE GOVERNOR AND SENATE, OR FROM THE LEGISLATURE, DURING THE TERM FOR WHICH HE SHALL HAVE BEEN ELECTED, NOR SHALL ANY MEMBER, DURING THE TERM FOR WHICH HE SHALL HAVE BEEN ELECTED, OR WITHIN TWO YEARS THEREAFTER, BE INTERESTED, DIRECTLY OR INDIRECTLY, IN ANY CONTRACT WITH THE STATE, OR ANY COUNTY OR OTHER SUBDIVISION THEREOF, AUTHORIZED BY LAW PASSED DURING THE TERM FOR WHICH HE SHALL HAVE BEEN ELECTED."
THIS PROVISION HAS BEEN HELD INAPPLICABLE WHEN THE LEGISLATOR IS PAID FROM FUNDS OTHER THAN STATE APPROPRIATIONS (SEE A. G. OPINIONS NO. 82-048 (8/11/82) AND NO. 71-233. HOWEVER, A. G. OPINION NO. 82-048 MAKES CLEAR THAT THE TEST OF WHETHER A LEGISLATOR HAS VIOLATED THE PROVISIONS OF ARTICLE V, SECTION 23 IS NOT BASED SOLELY ON THE ISSUE OF WHETHER THE LEGISLATOR IS BEING PAID FROM STATE APPROPRIATED FUNDS, RATHER AS STATED IN THE OPINION:
"(T)HE ANALYSIS CONTAINED IN THESE ATTORNEY GENERAL OPINIONS HAS CENTERED ON THE FACTOR OF WHETHER THE LEGISLATOR IS BEING PAID OUT OF STATE APPROPRIATED FUNDS, IT IS CONCEIVABLE THAT A CONTRACT . . . AUTHORIZED BY LAW . . ." MAY BE AUTHORIZED BY MEANS OTHER THAN LEGISLATIVE APPROPRIATION. THEREFORE, ANY CONTRACT OF EMPLOYMENT WHICH A LEGISLATOR MAY ENTER INTO WITH A SCHOOL DISTRICT MUST BE EXAMINED ON ITS OWN FACTS TO DETERMINE WHETHER IT IS ONE "AUTHORIZED BY LAW PASSED DURING THE TERM FOR WHICH (THE LEGISLATOR) SHALL HAVE BEEN ELECTED."
ASSUMING THAT YOUR CONTRACT WITH THE FDIC WAS NOT AUTHORIZED BY THE LEGISLATURE DURING YOUR TERM OF OFFICE AND IF THERE ARE NO APPROPRIATED FUNDS INVOLVED, THERE IS NO SPECIFIC PROHIBITION AGAINST ACCEPTING EMPLOYMENT ON A RETAINER BASIS WITH THE FDIC. WHETHER THAT EMPLOYMENT VIOLATES 74 O.S. 4246 (E.G., 74 O.S. 4246(G)) IS OF COURSE A QUESTION OF FACT WHICH MUST BE DETERMINED BY EACH LEGISLATOR.
(CONFLICT OF INTEREST/LEGISLATOR)
(DOUGLAS B. ALLEN)