RE: COMPENSATORY OVERTIME
ATTORNEY GENERAL HENRY HAS DIRECTED ME TO RESPOND TO YOUR REQUEST FOR AN OFFICIAL OPINION FROM THIS OFFICE ADJUDICATING, IN EFFECT, TO THE ELIGIBILITY OF A SPECIFIC EX-EMPLOYEE FOR PAYMENT FOR "UNUSED COMPENSATORY OVERTIME. N YOUR LETTER STATES THAT MR. CARL W. SLOAN, PREVIOUSLY EMPLOYED BY YOUR OFFICE AS AN INVESTIGATOR, WAS FIRED FOR REASONS STATED IN YOUR LETTER, THOSE REASONS CONSTITUTING MISCONDUCT. N YOU ENCLOSED AN AGREEMENT TO ACCEPT COMPENSATORY TIME OFF FOR OVERTIME, PURPORTING TO BE EXECUTED BY MR. SLOAN, AND SOME CORRESPONDENCE FROM A COMPLIANCE OFFICER OF THE WAGE AND HOUR DIVISION OF THE UNITED STATES DEPARTMENT OF LABOR, MAKING DEMAND ON YOUR OFFICE FOR PAYMENT OF UNUSED COMPENSATORY TIME EARNED BY MR. SLOAN.
THE ISSUANCE OF AN OFFICIAL OPINION OF THE ATTORNEY GENERAL IS NOT APPROPRIATE UNDER THE CIRCUMSTANCES INDICATED IN YOUR LETTER FOR SEVERAL REASONS. FIRST, IT HAS BEEN THE LONG-STANDING PRACTICE OF THIS ADMINISTRATION, AND OF PREVIOUS ADMINISTRATIONS, NOT TO ATTEMPT TO INTERJECT ITSELF INTO ADMINISTRATIVE OR COURT PROCEEDINGS VIA THE OFFICIAL OPINION PROCESS. IN THIS INSTANCE, THE UNDERLYING QUESTIONS INVOLVED IN YOUR CASE ARE PRESENTLY INVOLVED IN THE ADMINISTRATIVE DECISION-MAKING PROCESS OF THE UNITED STATES DEPARTMENT OF LABOR. WHATEVER THE EFFECT OF AN OFFICIAL OPINION OF THE ATTORNEY GENERAL ON STATE OFFICERS OR EMPLOYEES TO WHOM IT MAY APPLY, SUCH OPINIONS ARE NOT LIKELY TO BE REGARDED AS BINDING AUTHORITY IN RESOLVING YOUR DISPUTE WITH THE UNITED STATES DEPARTMENT OF LABOR. THIS IS ESPECIALLY TRUE WHERE THE LEGAL ISSUES INVOLVED ARE PURELY ISSUES OF FEDERAL EMPLOYMENT LAW. THE OTHER REASON WHY THE ATTORNEY GENERAL DOES NOT INVOLVE HIMSELF IN MATTERS THAT ARE BEING LITIGATED, EVEN AT THE ADMINISTRATIVE AGENCY LEVEL, IS TO AVOID THE APPEARANCE THAT THE OPINION PROCESS IS BEING UTILIZED TO INFLUENCE A TRIBUNAL, WHICH HAS THE INDEPENDENT AUTHORITY AND DUTY TO REACH ITS OWN DECISION.
FINALLY, ALTHOUGH WE ARE UNABLE TO RESPOND TO YOUR QUESTION VIA THE ISSUANCE OF AN OFFICIAL OPINION OF THE ATTORNEY GENERAL FOR THE REASONS STATED ABOVE, I WOULD NOTE THAT EVEN WERE THOSE CONDITIONS NOT PRESENT, YOUR OPINION REQUEST DOES NOT COMPLY WITH THE STATUTORY MANDATE THAT IT BE ACCOMPANIED BY A WRITTEN OPINION (OF THE DISTRICT ATTORNEY) SUPPORTED BY CITATION OF AUTHORITIES UPON THE MATTER SUBMITTED. 74 O.S. 18B(D) (1989). TO AVOID POTENTIAL MISUNDERSTANDINGS IN DEALING WITH FUTURE OPINION REQUESTS FROM YOUR OFFICE, IT SHOULD BE NOTED THAT THIS OFFICE REQUIRES A BRIEF OR MEMORANDUM OF LAW, REACHING A LEGAL CONCLUSION FROM THE OFFICE OF THE DISTRICT ATTORNEY INITIATING THE OPINION REQUEST. I REGRET THAT WE CANNOT BE OF MORE ASSISTANCE TO YOU ON THIS IN THIS MATTER.
(NED BASTOW)