ATTORNEY GENERAL LOVING HAS ASKED ME TO RESPOND TO YOUR RECENT REQUEST FOR INFORMAL GUIDANCE ON THE FOLLOWING QUESTION:
IN ADDITION TO ESTABLISHING POSITIONS IT DEEMS NECESSARY TO CARRY OUT THE PROVISIONS OF THE OKLAHOMA PUBLIC HEALTH CODE, 63 O.S. 1101 (1991) ET SEQ., AS AMENDED, MAY THE BOARD OF HEALTH APPOINT OR EMPLOY INDIVIDUALS TO FILL SUCH POSITIONS?
DUE TO THE FACT THAT YOU REQUESTED INFORMAL GUIDANCE ON THE ABOVE AND THAT SUCH GUIDANCE BE EXPEDITIOUS, THAT WHICH FOLLOWS IS THE ANALYSIS AND OPINION OF THE UNDERSIGNED AND NOT AN OFFICIAL OPINION OF THE ATTORNEY GENERAL. IT SHOULD ALSO BE NOTED I HAVE DISCUSSED THE FOLLOWING WITH MR. ROBERT COLE.
THERE ARE SEVERAL EXAMPLES OF STATUTES WHICH UNEQUIVOCALLY EMPOWER VARIOUS BOARDS TO APPOINT OR EMPLOY INDIVIDUALS TO FILL POSITIONS IN VARIOUS AGENCIES AND DEPARTMENTS. SEE E.A., 2 O.S. 2-4(E) AND (I) (THE STATE BOARD OF AGRICULTURE); 40 O.S. 4-312 (THE EMPLOYMENT SECURITY COMMISSION); 43A O.S. 2-104 (THE BOARD OF MENTAL HEALTH AND SUBSTANCE ABUSE SERVICES); 70 O.S. 3-104(3) AND (5) (THE STATE BOARD OF EDUCATION); AND 70 O.S. 14-103(1) (THE STATE BOARD OF VOCATIONAL AND TECHNICAL EDUCATION). TITLE 63 O.S. 1-104(B), THE STATUTE WHICH SETS FORTH THE POWERS AND DUTIES OF THE STATE BOARD OF HEALTH (HEREAFTER REFERRED TO AS THE "BOARD"), DOES NOT EMPOWER THE BOARD TO APPOINT OR EMPLOY INDIVIDUALS TO FILL POSITIONS TO CARRY OUT PROVISIONS OF THE OKLAHOMA PUBLIC HEALTH CODE. SECTION 63 O.S. 1-104(B) PROVIDES THAT:
"THE BOARD SHALL HAVE THE FOLLOWING POWERS AND DUTIES:
(1) APPOINT AND FIX THE COMPENSATION OF A STATE COMMISSIONER OF HEALTH.
(2) ADOPT SUCH RULES, REGULATIONS, AND STANDARDS AS IT DEEMS NECESSARY TO CARRY OUT ANY OF THE PROVISIONS OF THIS CODE.
(3) ACCEPT AND DISBURSE GRANTS, ALLOTMENTS, GIFTS, DEVISES, BEQUESTS, FUNDS, APPROPRIATIONS, AND OTHER PROPERTY MADE OR OFFERED TO IT; AND
(4) ESTABLISH SUCH DIVISIONS. SECTIONS. BUREAUS. OFFICES. AND POSITIONS IN THE STATE DEPARTMENT OF HEALTH AS IT DEEMS NECESSARY TO CARRY OUT THE PROVISIONS OF THE CODE."
(EMPHASIS ADDED.)
THE FUNDAMENTAL PRINCIPLE OF STATUTORY CONSTRUCTION IS TO ASCERTAIN THE UNDERLYING LEGISLATIVE INTENT THROUGH AN EXAMINATION OF THE STATUTE'S LANGUAGE. FULLER V. ODOM, 741 P.2D 449 (OKLA.1987). IN THE STATUTES ADDRESSED AT THE BEGINNING OF THE PRECEDING PARAGRAPH THE LEGISLATURE HAS EXPLICITLY EXPRESSED ITS INTENT TO PROVIDE THOSE BOARDS WITH THE AUTHORITY TO EMPLOY OR APPOINT INDIVIDUALS. IN CONTRAST, THE LEGISLATURE HAS NOT EXPRESSED SUCH AN INTENT IN 63 O.S. 1-104 (1991). CONSEQUENTLY, IT IS THE OPINION OF THE UNDERSIGNED ATTORNEY THAT THE BOARD DOES NOT HAVE THE AUTHORITY TO FILL THE POSITIONS IT HAS ESTABLISHED TO CARRY OUT THE PROVISIONS OF THE CODE.
THAT THE BOARD CAN APPARENTLY CHANGE OR MODIFY THE POWERS AND DUTIES OF THE COMMISSIONER OF HEALTH BY VIRTUE OF 63 O.S. 1-106(B),1 IS NOT PERSUASIVE INSOFAR AS THIS QUESTION IS CONCERNED.
GIVEN THE DELIBERATE AND UNEQUIVOCAL LANGUAGE UTILIZED BY THE LEGISLATURE IN THOSE STATUTES EXAMINED IN THE FIRST PART OF THIS LETTER, IT IS MY OPINION THAT SIMILAR LANGUAGE WOULD HAVE TO BE FOUND IN 63 O.S. 1-104(B), THE STATUTE SETTING FORTH THE BOARD'S POWERS AND DUTIES, IN ORDER FOR THE BOARD TO HAVE THE POWER TO EMPLOY OR APPOINT INDIVIDUALS TO CARRY OUT THE PROVISIONS OF THE CODE.
1 TITLE 63 O.S. 1-106(B) (1991), PROVIDES IN PERTINENT PART:
"THE COMMISSIONER SHALL HAVE THE FOLLOWING POWERS AND DUTIES, UNLESS OTHERWISE DIRECTED BY THE STATE BOARD OF HEALTH:
* * *
(3) APPOINT AN ASSISTANT STATE COMMISSIONER OF HEALTH AND FIX HIS QUALIFICATIONS, DUTIES AND COMPENSATION: AND EMPLOY, APPOINT AND CONTRACT WITH, AND FIX THE QUALIFICATIONS, DUTIES AND COMPENSATION OF, SUCH OTHER ASSISTANTS, DOCTORS, ENGINEERS, ATTORNEYS, SANITARIANS, NURSES, LABORATORY PERSONNEL, ADMINISTRATIVE, CLERICAL AND TECHNICAL HELP, INVESTIGATORS AIDES AND OTHER PERSONNEL AND HELP, EITHER ON A FULL-TIME, PART-TIME, FEE OR CONTRACTUAL BASIS, AS IN HIS JUDGMENT AND DISCRETION SHALL BE DEEMED NECESSARY, EXPEDIENT, CONVENIENT OR APPROPRIATE TO THE PERFORMANCE OR CARRYING OUT OF ANY OF THE PURPOSES, OBJECTIVES OR PROVISIONS OF THIS CODE, OR TO ASSIST HIM IN THE PERFORMANCE OF HIS OFFICIAL DUTIES AND FUNCTIONS."
(VICTOR N. BIRD)