ATTORNEY GENERAL LOVING HAS ASKED ME TO RESPOND TO YOUR REQUEST FOR AN OPINION IN WHICH YOU ASKED, IN EFFECT:
IS IT LEGAL FOR A COUNTY CLERK TO PAY HER TWO DEPUTIES NINETY PERCENT (90%) OF THE SALARY OF THE COUNTY CLERK WHERE THERE ARE ONLY TWO DEPUTIES EMPLOYED BY THAT OFFICE?
BECAUSE YOUR REQUEST HAS PREVIOUSLY BEEN ADDRESSED BY AN ATTORNEY GENERAL OPINION, THIS OFFICE HAS DETERMINED YOUR REQUEST SHOULD BE ANSWERED THROUGH THIS INFORMAL LETTER.
THE DISCUSSION WHICH FOLLOWS IS NOT AN OFFICIAL OPINION OF THE ATTORNEY GENERAL. RATHER, THE ANALYSIS AND CONCLUSIONS WHICH FOLLOW, WHILE SOLELY MY OWN, HAVE BEEN REACHED AFTER CAREFUL RESEARCH OF THE QUESTION YOU HAVE RAISED.
PURSUANT TO TITLE 19 OF THE OKLAHOMA STATUTES, COUNTY OFFICERS AND COMMISSIONERS ARE BOUND TO PAY THEIR EMPLOYEES WITHIN THE LIMITATIONS SET FORTH BY THE LEGISLATURE. 19 O.S. 180.67 (1991). TITLE 19 OF THE OKLAHOMA STATUTES, SECTION 19 O.S. 180.65 (1991), SETS FORTH LIMITATIONS AS TO DESIGNATION AND SALARIES OF DEPUTIES OR ASSISTANTS TO COUNTY OFFICERS. SUBSECTION C THEREIN PROVIDES, IN PART:
"THE FIRST OR CHIEF DEPUTY OR ASSISTANT TO ANY OFFICER, AS AUTHORIZED BY SUBSECTION B OF THIS SECTION, SHALL RECEIVE A SALARY NOT TO EXCEED NINETY PERCENT — (90%) OF THE SALARY OF THE PRINCIPAL OFFICER; AND, IF THE PRINCIPAL OFFICER H S MORE THAN ONE DEPUTY OR ASSISTANT, THAT PERSON OR THOSE PERSONS WHOM THE PRINCIPAL OFFICER MAY DESIGNATE AS "SECOND DEPUTY" OR "SECOND ASSISTANT" SHALL RECEIVE A SALARY NOT TO EXCEED EIGHTY PERCENT (80%) OF THE SALARY OF THE PRINCIPAL OFFICER(.)"
SUBSECTION 19 O.S. 180.65(D) PROVIDES, IN PART:
"NO OTHER DEPUTY, AIDE, ASSISTANT, OR OTHER PERSON NAMED IN SUBSECTION A OF THIS SECTION MAY BE PAID AT A SALARY RATE IN EXCESS OF EIGHTY PERCENT (80%) OF THE SALARY OF THE PRINCIPAL OFFICER . . . PROVIDED THAT THE EIGHTY PERCENT (80%) LIMITATION SHALL NOT APPLY TO COUNTY OFFICERS EMPLOYING ONLY TWO DEPUTIES OR TECHNICAL HELP ON A PART-TIME CONTRACT OR WAGE BASIS WITHIN THE AMOUNT OF LAWFUL APPROPRIATIONS FOR SAID PURPOSES, BY AND WITH THE CONSENT AND APPROVAL OF THE COUNTY COMMISSIONERS. (EMPHASIS ADDED.)"
IT IS, OF COURSE, NECESSARY IN THE INTERPRETATION OF SECTION 19 O.S. 180.65 TO ASCERTAIN AND TO GIVE EFFECT TO THE PLAIN INTENT OF THE LEGISLATURE. STATE EX REL. CARTWRIGHT V. GEORGIA-PACIFIC CORP., 663 P.2D 718 (OKLA. 1982). WORDS IN A STATUTE ARE TO BE CONSTRUED IN THEIR ORDINARY SENSE. 25 O.S. 1 (1991). LOFFLAND BROS. _EQUIPMENT V. WHITE, 689 P.2D 311 (OKLA. 1984).
IN THE PRESENT SCENARIO, THE COUNTY CLERK IN QUESTION EMPLOYS TWO DEPUTIES. ONE DEPUTY IS DESIGNATED THE FIRST ASSISTANT, AND THE OTHER IS THE COUNTY PURCHASING AGENT. BOTH ARE PAID AT NINETY PERCENT (SO) OF THE SALARY OF THE COUNTY CLERK. A PLAIN READING OF 19 O.S. 180.65(D) INDICATES THAT THE EIGHTY PERCENT (80%) CAP ON SALARIES DOES NOT APPLY TO A COUNTY OFFICER WITH TWO DEPUTIES ONLY. THIS WOULD BE APPLICABLE TO THE PRESENT QUESTION. THE USE OF THE DISJUNCTIVE "OR" IN SUBSECTION D INDICATES THAT THE WAIVER OF THE CAP APPLIES EITHER TO A COUNTY OFFICER WITH TWO DEPUTIES OR TECHNICAL HELP ON A PART-TIME BASIS. IN OTHER WORDS, THE DISJUNCTIVE ALLOWS EITHER CONDITION TO SATISFY SUCH WAIVER. A COUNTY OFFICER IS, HOWEVER, PROHIBITED FROM DESIGNATING A DEPUTY OR ASSISTANT BY SOME OTHER TITLE IN ORDER TO EVADE THE SALARY LIMITATIONS. 19 O.S. 180.67. SEE ALSO A.G. OPIN. NO. 64-214.
A PLAIN READING OF 19 O.S. 180.67 WOULD INDICATE THAT A COUNTY OFFICIAL WHO EMPLOYED THREE DEPUTIES, EVEN IF ONE OR MORE WERE EMPLOYED ON A PART-TIME BASIS, WOULD STILL BE SUBJECT TO THE LIMITATIONS OF 180.65(D). THE LANGUAGE OF 19 O.S. 180.65(D) APPEARS TO APPLY THE PARTTIME EXCEPTION TO TECHNICAL HELP, WHETHER ON A CONTRACT OR WAGE BASIS.
THIS QUESTION WAS PREVIOUSLY REVIEWED BY THIS OFFICE IN A. G. OPIN. NOS. 64-214 AND 84-021. IN BOTH OPINIONS, IT WAS THE DETERMINATION OF THIS OFFICE THAT A PLAIN READING OF 180.65 REFLECTED THAT THE EIGHTY PERCENT (80%) SALARY LIMITATION WAS NOT APPLICABLE TO A COUNTY CLERK WHO EMPLOYED TWO DEPUTIES ONLY.
IT IS, THEREFORE, THE OPINION OF THE UNDERSIGNED ATTORNEY THAT A COUNTY CLERK WHO EMPLOYS TWO DEPUTIES ONLY DOES NOT VIOLATE TITLE 19 O.S. 180.65 BY PAYING BOTH DEPUTIES AT NINETY PERCENT (90%) OF THE SALARY OF THE COUNTY CLERK.
(JAMES ROBERT JOHNSON)