Oklahoma Public Employees Ass'n v. Oklahoma Department of Central Services

litiga- 15(A) pending mandate the abatement {24 it is not Rule the federal Under here-upon the conclusion as that equiv tion-such federal complaint [the a axiomatic may be amend receivership unless the claim petition] ancillary of an alent of Oklahoma's specifically is before an answer is any time pending action] right at [in in issue ed right party the by the receiver- Allowing a joined addressed as an issue served.28 here, Where, unre- ship proceedings. as permis the court's right without amend years 2015 is brought within three sentence of litigation the first under solved sion date, the cor- dissolution corporation's language of Section later consistent a complete is not right poration's dissolution 2015(A) party's cireumseribes which fait after a litigation leave of court "only" with until that is finished accompli amend fully in the same is any judgment entered It was has been filed. pleading responsive the trial executed. provisions 2015's under error Winston/Ramsey's amendment deny court granted, earlier Upon 1 27 certiorari theories to assert new petition their Elder, individu liability against Stewart APPEALS CIVIL THE COURT OF yet responded had ally, when defendants VACATED; TRIAL THE IS OPINION The error is even original petition. IN IS REVERSED COURT'S JUDGMENT trial date when no pronounced here more PART; AND AFFIRMED IN PART AND the trial court the time as of had been set REMANDED FOR FUR- THE CAUSE amendment, plain proposed ruled on the NOT INCONSIS- THER PROCEEDINGS require did not sought-after amendment tiffs' PRONOUNCE- TENT TODAY'S WITH parties, joinder of additional MENT. Elder no gave original petition Stewart plaintiffs were facts which tice of the basic HODGES, HARGRAVE,C.J., 1 28 theo their additional asserting support OPALA,KAUGER, SUMMERS and being liability asserted.29 ries of JJ., WINCHESTER, concur. VI BOUDREAU, J., concurs result. SUMMARY V.C.J., WATT, disqualified. 1 30 upon to called Today the Court summary process to resolve assess the use of trial court's on the

a case which had been our assess- years. almost five

docket for that sum- extremely mindful

ment we except invoked

mary adjudication not be a useless trial. eliminate

where it serves to always preferred to A merits is trial on the 2002 OK 71 questions all except where trial affidavit have been resolved. of material facts EMPLOYEES AS OKLAHOMA PUBLIC Melton, SOCIATION, Billy D. & Earlene Elder] [Stewart €26 The defendants' Davis, Benefied, D. Richard C. firm Paul Oris majority of law conduct shareholders Sr., Jackson, Jackson, Helen L. Dwain un- fact which remain presents questions of Kelley, Roy Mitchell, Allena E. ancillary E. E. resolved the conclusion Freeman, Harms, Kathryn Co- Reinauer language does 1099's receivership. Section Miller, deposition cognizant plaintiffs' 29. The Court is Prac. & Proc. 6 Fed. 28. See Wricut and Washington N.Y.City testimony they addi- Civ.2d 1483. See also about whether would assert Cir.1983); Estimate, (2d Bd. 709 F.2d liability seeking impose indi- tional theories of Corp., 68 F.R.D. Bank v. Glenn Construction liability vidual on Stewart and Elder. Nonethe- Court, 1975). (U.S. D. Hawaii District less, they would failed to show defendants have Programs, Leighton, 833 Lastly, Ltd. v. see DCD though possible unduly prejudiced, it is even (9th Cir.1987), the court where F.2d discovery. they may additional have to conduct itself, justify delay, by held that is insufficient denial of leave to amend. Patterson, Betty Bennan, leen Linda

Turner, Jones, Fredetta Richard F.

Buck, Betty Whinnery, Joyce Brown, Jo Terry,

Pauline Weaver, V. Pamela G. Eugene

Kenneth Johnson, & Bonnie J.

Plaintiffs/Appellees,

OKLAHOMA DEPARTMENT OF CEN- SERVICES, Jaworsky,

TRAL Tom

Purchasing Director for the Oklahoma Services, of Central

Oklahoma of Human Ser-

vices, Defendents/Appellants, Taylor, Tempore

Stratton President Pro Senate,

of the Oklahoma Amicus

Curiae. 94,985.

No.

Supreme Court of Oklahoma.

Sept. Freeman, Ir.,

Richard W. Assistant Gener- Counsel, DHS, Jr., al Ely, and John J. Assis- Counsel, DHS, tant General City, Oklahoma OK, Defendant/Appellant for Oklahoma De- partment of Human Services.

Joseph Stiner, Walters and John D. MceAf- Taft, OK, fee & City, Oklahoma for Defen- dants/Appellants Oklahoma Central Jaworksky. Services and Tom Richard A. Napier, Mildren and Catherine Neal, Riggs, Abney, Turpen, Orbison & Lew- is, OK, City, Oklahoma Plaintiff/Appellee Employees OklahomaPublic Association. Taylor, Tempore Stratton President Pro Senate, City, Oklahoma, Oklahoma Oklahoma Curiae/Appellee, Amicus Pro se. SUMMERS, prior employment J. terminate their state outsourcing. O.8.Supp.1999 See whether we address case T1 this § 840-2.28. (DHS) is Human Services statutory or constitutional express limited to facility of is the North- T4 Another determining its authority for of Enid ern Oklahoma Resource Center We determine certain contracts. into enter (NORCE)], property located on the same as authority is express contractual when Liberty The contract with includes Greer. implied possesses those granted DHS supplies" provision that "food and related will necessary for the that are powers contractual utiliza- "NORCE staff" "via be obtained expressly discharge the duties effective contracts"; is, that the food tion of state conclude that upon DHS. We also conferred provided by supplies related will be Plaintiffs, possess taxpayers, (NORCE)] Liberty. A contractual similar expenditure of alleged unlawful challenge an requires provide pharma- provision DHS to the trial court's affirm public funds. We supplies. They ceutical and medical are to taxpayer standing, but re- determination "procured by Agency, by NORCE summary judgment, because it was verse the staff via utilization of state contracts that a contractual au- upon the idea based [Liberty] provided to the via the Contractor not exist the ab- thority power would Agreement...." Goods and Services Shared authority expressly granting such sence of Plaintiffs, Em Public Oklahoma DHS, Department of authority. Motions (OPEA) ployees Association and several indi Services, Jaworsky and Tom for oral Central viduals, brought in the District Court suit argument are denied. injunction im seeking permanent against a manage- decided to outsource contract, management plementation of the Facility M. Greer Center ment of Robert declaratory judgment they sought a also (Greer) requested in Enid. DHS that located outsourcing on lawfulness of Department of Central Ser- the Oklahoma Agreement. Shared Goods and Services Services) (Central for solicit offers vices sought summary judgment, Both sides contracts, whereupon management Central the trial ruled in favor of Plaintiffs. court Liberty of Oklahoma Cor- Services selected The court concluded that Plaintiffs had management (Liberty) poration standing, outsourcing was im and that contract was awarded Greer Center. One spe proper because the had not sixty-day period effective Liberty one for cifically authorized DHS to outsource the 1999, 30, an additional con- November stayed The District Greer Center. Court 31, through January year run one tract pending appeal. effect of its an decision 2001, to renew for nine addition- options with appealed and DHS and Central Services we one-year periods. al controversy.1 retained the managing plan for Greer Center 13 The removing employees the state at included Standing I. of the OPEA payroll, those centers from state hiring granted 16 The trial sum then those same em- court successful bidder than ployees period a of no less six mary judgment against Central Services implement outsourcing DHS DHS. adjudication months. To Summary judgment controversy. the total number of state on the merits of the Union Oil decided to reduce Greer, employees thereby Equalization decrease Co. v. Board California 1830, County, employees the suceessful bid- Beckham 1996 OK 913 P.2d the number of appropriate It required to hire. ob- 1333. "where there is no der would be dispute as to the material facts or as to the permission tained Office statutory undisputed employees offer a bene- inferences to be drawn from Finance to deciding voluntarily package fit for those facts, the movant's claim law favors joint a brief DHS. DHS and Central Services filed joint arguments and we as those of address their Clark, 1999 OK n. liability-defeating 990 P.2d defense." Harkrider v. 94, 8, Posey, 824-825. In Independent Finance Institute we relied America, Private Truck Council of dispute plaintiff's the facts are not in When adjudicated standing may Inc., on a motion for Commission, v. Oklahoma Tax summary judgment. Curry, Beville v. 54, 131, 598, 607, vacated and re 754, 758; grounds by Herring manded on other v. State National Pri Commission, ex Tax rel. Oklahoma 1995 OK vate Truck Inc. v. Oklahoma Tax Council, Commission, 501U.S. 111S.Ct. 1076. No are in facts dispute standing relevant (1991), 115 L.Ed.2d explained and we OPEA. that standing based, an association's was part, upon injury right possessed to a argue 17 DHS and Central Services member of the association: plaintiffs OPEA and the individual lack Supreme Court of the United States standing bring the suit. OPEA includes recognized "has that an association taxpayer/residents members who are standing have to assert the claims of its employees at the Greer Center. We address OPEA, members even where it has suffered no standing first the injury from challenged activity." argues it standing OPEA has if determining whether an association has Respondents public violated state statutes or standing, the United Supreme States rules, such because violations are in Court has: juries to the State and its citizens. OPEA recognized that an association has stand- argues taxpayer further that a standing has ing bring suit on behalf of its mem- challenge illegal public creation of a (a) bers when: its members would other- illegal expenditure debt or the public wise have to sue their own funds, proposed and that action of the (b) right; it pro- interests seeks to Defendants created expendi such debt and germane tect are organization's to the ture. OPEA further asserts that its mem (c) purpose; neither the claim as- taxpayers. bers are citizens and OPEA cites requested serted nor the relief requires Glass, Independent School Dist. No. 9 v. participation the of individual members 2, 1982 OK 689 P.2d in the lawsuit. proposition that "A violation of a state stat injury ute is an to the America, Inc., State and its citiz Private Truck Council of 54, OK 806P.2d at 607. ens."2 OPEA states that its members are citizens, that a violation of a statute has Thus an standing association's is based occurred, standing. and it thus has upon members of that association possessing

T9 have pos standing We said that an association in right.3 sue their own Do possess standing members of the standing? OPEA sesses to seek relief on behalf of its Independent members. Finance Institute v. they We concludethat do. 2. We note that in Glass Court determined states, without citation of to the authority, possessed standing that a school district to chal- appeal, organiza- record on that the OPEA "is an lenge alleged illegal an ad valorem tax refund public employees purpose tion of whose is to affecting the revenue of that district. The Court protect rights employees" their as and that the relied Long, School Dist. v. No. 74 1894 OK germane purpose. suit is not to this The trial 38, 601, 37 P. where we determined that School adjudication court occurred in the context of legally charged District No. 74 was with main- summary judgment. motions for Those motions district, taining the schools in the and the clerk's identify any relating purpose do not facts to the rolls, removing property acts in from the tax with to, by, agreed of the OPEA as either contested school, the decrease in dedicated revenue parties. Generally, appeal on an this necessarily injury would result in an to the dis- Court does not make first instance determina- by affecting ability carry legal trict its out its disputed questions tions on of fact or law. Mar- obligation. Long, See, Glass, 1238; 639 P.2d at Johnson, 127, 889, tin v. OK 975 P.2d 37 P. at 601-602. purpose We decline to rule on the of the OPEA raises, brief, appellate showing

3. DHS without a a footnote in its court record that the fact trial satisfy prong parties that the OPEA fails to the second was made an issue of for trial court standing adjudication. the test for the of an association. constitutional; being

{10 there no distinction standing of the OPEA is payment to restrain the of its mem between suits on the status in this case based challenging alleged ille municipal treasury a taxpayers funds from a suit bers as payments trea- to restrain from the state years public Four gal expenditure funds. opin exercising in sury, municipality, this Court examined a before Statehood by taxa- delegated to raise funds jurisdictions, and concluded in ions different tion, exercising part power a is to seek taxpayer should that a allowed challenge illegal state, sovereignty of the state equity to relief in a court of involved, degree, in except in a is no less expenditure public illegal taxation enjoin misappropria- taxpayer's suit to No. 10 Kellogg v. Dist. funds. School municipality a than in a tion of funds of 81, 110, P. County, 1903 OK Comanche enjoin misappropriation suit to followed this conclusion 116. We have treasury." public funds the state years. eg., Thompson v. subsequent See 700, 704; Haskell, 140, Airy appropriation public 102 P. 1909 OK The unlawful 445, rights legal 447- funds an invasion of the Thompson, v. taxpayer, of a and a suit be main- Jones, 448; Payne 1944 OK expenditure tained Ashworth, to restrain 113, 117; 1998 OK Brandon v. appropriation, under an unlawful Tulsa, funds 233, 235; Quinn Thus, waiting for the state officers to without 1989 OK steps expendi- take further toward the equita standing to seek taxpayer possesses appropriated. ture of funds alleging that a violation of a relief when ble expenditure illegal in an Childers, statute will result P. Vette v. illegal public imposition of an funds or the (citation added). emphasis tax. Respondents' argument limiting scope

[11 Kellogg governmental entities non-State may bring taxpayers DHS states that is without merit. corporation, against municipal but not suit government. This Court of State {12 DHS the interests of the states length in argument at Vette v. addressed this members of the OPEA are common to the Childers, 190, 228 P. where we population large, and the members should Kellogg ap- explained principle possess challenge the acts of plied seeking challenge taxpayers certainly state officials. It true that expenditure of unlawful or unconstitutional some circumstances where a state statute is state funds. plaintiff, regardless taxpayer the violated of status, injury specific must relief an seek Haskell, Governor,

Thompson et al. v. to that individual that is not shared 70, 140, supra, 24 102 P. OK Okla. [1909 public large. example, For some of our therefore, support not the con 700] does opinions standing taxpayers discuss where error, in tention of the defendants statute, allege they a a violation of state but Kellogg rule announced in the Case has allege illegal public do mot also am tax or never are of the been overruled.... We expenditure. opinion that the correct rule is announced Russel, 304, Ill. Fergus in v. 270 110 N.E. Willis, 116, In Bird v. 927 1996 OK 130, 1916B, 1120, in the first Ann.Cas. 547, where a citizen claimed that a state syllabus, follows: as issuing li official violated a statute when a individual, equitable ownership quor license to another we said "Because of their treasury, regard plaintiff's standing the in the state and their with that funds treasury liability for a replenish particular "an individual must have a interest own, deficiency by independent a that which would be caused of his interest misappropriation, taxpayers may maintain which other he hold common with Accord, payment equity people." Macy a bill in Id. 927 P.2d at 552. to restrain 89, v. Oklahoma School Dist. No. moneys treasury approp- from the state 114, 807, 58, 804, Assembly (taxpayers 961 P.2d riated on the OK General not, declaratory ground taxpayers, bring un- a appropriations that such could as election). judgment Standing to invalidate an Tox II. of Individuals Cf. Leavitt, Impact Group, ic Waste Inc. v. 115 DHS and Central Services fur 148, 914, (cause 906, remanded argue ther that the non-OPEA-members as adjudication plaintiff's to trial court for an standing individuals lack bring the suit. standing upon showing plaintiffs based a family members, The individuals are guard injured aggrieved were the chal ians, parents of residents at Greer Center. action). lenged governmental First, we voluntary . note that "The placement of a child an institution for mentally addressing plaintiffs' 114 In standing as not, retarded parents child's shall Atkins, taxpayers, in McFarland v. 1979 OK itself, abrogate rights authority 3, 758, explained we they could 0.$.1991 parents." 1415(A). Fur successfully bring not the suit where the ther, in operated facilities by Department express statutory of Health had of Human Services all residents institu non-governmen to contract with a mentally tions for the retarded "who are provide tal certain services. Id. (18) eighteen years age or older shall have Similarly, recently 594 P.2d at 762. we indi guardian appointed by a court." Id. at taxpayer's standing cated that a in an elec 1415(B). However, in some cases after an tion contest is different from that of a tax performed assessment is appointment payer's standing challenging illegal when guardian guardian warranted and a equitable tax in an proceeding. Macy, 1998 1415(C). appointed. is not Id. at 58, 23, OK 1 opinions 961 P.2d at 810. These challenge does not parents status of the many years show a distinction we past made guardians proper representatives Gill, in Town v. 1916 OK 156 P. of Afton the residents of Greer. T 16 DHS states that the individuals do not Haskell, Thompson v. 24 Okl. possess (1) standing they because have not Pac. this court made the limitation of demonstrated that resident has suffered the rule clear. It was there held that the (2) injury fact; actual or they imminent permit private rule does not individuals to have not injury demonstrated an to them- public purely restrain officials to correct (8) selves; taxpayer status is insufficient. public wrongs, right but restricts the of a We have following: stated the private individual to that class of cases party A whose challenged must which illegal- involves the creation of debts (1) (2) show actual injury, or threatened ly against, or wrongful expenditure (8) for which given, relief can be of, moneys taxpayers. interest protected to be is "within a statu torily constitutionally protected zone". Gill, Town 1916 OK P. of Afton In re Initiative Haskell, Petition No. explaining, Thompson v. n. 565 n. 29. 102 Pac. 700. "direct, The interest must be immediate Likewise, Jones, Payne supra, we said. and substantial". Lathrop, Underside v. 57, 7, 514, We are committed to the rules that a 1982OK T 645 P.2d 517. taxpayer, although resident he shows no Ashworth, 20, T6, Brandon v. 1998 OK special private interest, may or maintain 233, P.2d 235. enjoin an illegal action to creation of a In applying this standard we have ex public illegal or an expenditure debt plained may brought that a suit challeng be court) public (Syllabus by funds Id. at ing action, legality government 115, 117. inaction, plaintiff if object is the sum, In OPEA, issue, the members of the as tax- ordinarily the action at "there is little payers, possess standing challenge question to an al- that the action or inaction has leged wrongful expenditure funds, public injury, caused him judgment pre and that a thus, possesses standing OPEA venting requiring to the action will redress injunctive prevent seek relief alleged to Impact it." Toxic Group, Waste Inc. v. Leavitt, expenditure 1994 OK unlawful 912. of those funds. funds, including payments, All federal con 5. some causal

Further, be} [must "there payments from party payments, and injury and third alleged between nection proper- Center are the challenged." Herring v. State residents for Greer being actions Commission, ty of DHS. Tax ex rel. Oklahoma quoting, Seal P.2d Care Fa- 6. holds the Intermediate DHS Commission, Corporation cility Mentally License for the Retarded nom., dismissed sub appeal for Greer Center. Com Corp. Corporation Hess Amerada facility in Liberty operate the 7. must mission, 107 S.Ct. 479 U.S. policies of with the established accordance (1987). L.Ed.2d 126 Developmental Disabilities DHS challenge by Defendants 117 The first Division. Service Center that the residents the Greer states realty, facil- to own the 8. DHS continues not, injury. not, Par- and will suffer have ities, equipment, furniture of Greer alleged the non- guardians that ents Center. operate entity selected government Healthcare, Center, Liberty not would the facili- general Greer The maintenance of 9. ties rests with DHS. without addi- operate Center be able They alleged employees. tional staff full and free access to 10. DHS shall have probably that would additional staff that the Liberty's operation inspect observe and employed employees at selected time, any without Greer Center alleged em- They that these also NORCE. notice. "may adequately trained or ployees not be Response, at citations to contract omitted. the care to resi- provide skilled to who, unlike the Greer Center dents of sum, summary judg motion for Plaintiffs' residents, dually diagnosed." NORCE alleged ment that the care of the residents motion for responded to the may agreement, and T18 DHS suffer because of the responded stating that it would monitor qual- that the summary judgment, and stated purpose residents for the in the care of the would remain ity for the residents of care pointed to the provide fulfilling obligation of DHS. DHS its the control residents, Le., that health and welfare of the agreement: of its final following provisions would not suffer. the care of the residents authority to dis- has the sole 1. DHS replied response, Plaintiffs to Defendants' residents, Liberty charge or admit quality of care to be but did not discuss accept referrals. all DHS must received the residents.4 Advocacy of Client Office DHS' disputes, and ac- charge of residents' all summary judgment process 19 The does investigations must be response to tions in any support the propo- not reveal facts approved DHS. sition that the care of the residents Greer right request the ter- has would suffer as a result of the out- Center Center; employee any at Greer mination of point sourcing agreement. Plaintiffs do not Liberty give DHS two weeks notice must any appellate such facts their briefs. any key replacing before member any particular parties have identified Greer Center Staff. medically recognized standard of treatment has, will, immediately fall terminate the the DHS short of 4. DHS delivering under if the health treatment the residents contract it determines Further, Liberty. par- contract with safety resident is endan- and/or any duty legal do not articulate or stan- gered by or inactions of Liber- ties the actions specifically degree the ty. dard of conduct on championed by parents guardians, patient hospital no that a in a mental their 4. We have said during right meaningful allegations made, produced treat were or facts a constitutional to has 747, B., 7, summary adjudication process, relating to OK 609 P.2d the ment. In re K.K. 1980 any particular deciding, treatment of the residents as war Assuming, that a similar 749. but not ranting legal remedy. right may possessed by is the residents

1081 required by providing for the appellate jurisdic care Court will not exercise its tion residents. to make first instance determinations on disputed questions of fact or law. Martin v. injunction prevent 120 An to is used Johnson, 127, 889, 1998 OK 975 P.2d 897. misconduct, injunction future but an should judgment The trial determining court's the expectation be denied when the of future standing parents guardians, of the to the wrongdoing speculative is too to form the upon extent that it disputed allegation rests Quinn issuing injunction. basis for v. injury residents, to the cannot stand and Tulsa, 112, 1331, 1989 OK must be reversed. Because the trial court Accord, Earth, 1341. Friends Inc. v. previously adjudicate did not standing (TOC), Laidlaw Environmental Services parties allegation based injury Inc., 528 U.S. S.Ct. residents, parties assert, may (2000), discussing, Angeles L.Ed.2d 610 Los adjudicate, the trial may court standing such Lyons, 461 U.S. S.Ct. upon remand. Impact Toxic Group, Waste (there (1983), L.Ed.2d 675 are cireumstances Leavitt, supra. Inc. v. prospect in which the that a defendant will engage in specu harmful conduct be too Authority III. of DHS support standing injunctive lative to for re The Oklahoma lief). suggest Defendants claim of Liberty Central Services selected of Okla injury speculative. is Corporation manage homa the Greer Cen ter. Does the of Human Ser 121 In Toxic Impact Waste possess authority vices to outsource or Leavitt, Group, Inc. v. privatize operation of Greer Center not required we the trial court to determine withstanding specific a lack of contractual standing after the cause was remanded to to outsource? DHS need not appeal that court. The record on here does specific authority have if outsourcing such any adjudication not show specific on the perform statutory duty its parents guardians claim of the operate Greer Center. injury would occur to the residents. Further, nothing in the appeal record on provides The Oklahoma Constitution any adjudication shows on Legislature Defendants' asser that "the people and the ini injury speculative. petition tions that the claim of hereby tiative are pro authorized to party invoking jurisdiction by appropriate a court's legislation has vide for the relief needy aged persons and care of establishing who are burden of his or her stand (when contested) ing pursue themselves, provide action unable to for and other who, Impact Group, needy persons court. Toxic Waste Inc. on account of immature Leavitt, age, physical infirmity, disability, or other Whether this burden is met must first be cause, provide are unable to or care for themselves;. § determined the District ..." Court This Okla. Const. Art. 25 1.6 Language Liberty engage sponte in the contract with states decline to in a sua discussion of "outsourcing"" management that it is of the applies. when the Act and that this is not be- facility, "privatization" facility, cause DHS continues to maintain the § 6. Okla. Art. Const. 1: "provide oversight operation of the Facili- needy aged § 1. Relief and care of and disabled ty" ownership property and retain persons-Co-operation plan with Federal equipment. parties We note that do not promote general In order to welfare of the application address of the Oklahoma Privatiza- people of the State of Oklahoma and for their tion of State Functions Act. The Act's effective benefit, protection, security, Legislature January date is 2000. 1999 Okla. Sess. Laws people by petition hereby initiative are editorially c. 6. The Act was codified with provide appropriate legislation authorized to O.S.Supp.1999 renumbered sections at 74 needy aged persons "privatize" §§ 586-590. The Act defines and care as en- relief who tering performance into a contract for the aof themselves, are unable and other provide who, needy persons age, duty currently on account of immature being per- or function which is cause, physical infirmity, disability, employee. formed a state Id. at or other 588. The requires procedures privati- Act certain before a unable themselves; or care for Provid- provide ed, people by zation contract is awarded. Id. at 589. We initiative De specifies that the Department also of Human vices and not the Our Constitution (nowDepartment Public Welfare partment of The Commission exercise Services. Services)7 of has the function of Human legislative policy power to formulate a while carrying all into execution administering and Department of the exercises the Director Legislature and the Peo by the laws enacted im executive and administrative duties provi § 2.8These Art. 25 ple. Okla. Const. upon Department. posed the Okla. Const. power resides in legislative sions state that § Art. 25 4. The Oklahoma Administrative People, and the Legislature the and (O.A.C.) states that "The Commission Code by created either those laws must execute formulating Department responsible for is People. Legislature the the regulations adopting and Policies and rules programs for the effective administration of argues possesses it 124 DHS jurisdiction Department." of the under spe to formulate the constitutional 340:1-1-3(b)(1996). summary, O.A.C. perform it will those policies on how cific Legislature People the duties define by Legislature and assigned to it duties 1,§ Department, Okla. Const. Art. 25 of the upon People. relies Okla. Const. duties, Department carries out those points § 4.9 It to constitutional Art. 25 1,§ Const. Art. 25 the Commission Okla. stating that: "The Commission language policies Department creates and rules for the adopt policies, and rules shall formulate carry Department, the duties of the to out administra regulations for the effective and 4,§ Art. 25 and the Director Okla. Const. Department." The of the tion of the duties possesses power and administrative policies executive power formulate re constitutional for Human Ser sides in the Commission implement policies created and rules authorized, co-operation sibility faithfully administering carrying petition, of and are further any by plan pursuant authorized the Fed- with under into execution all laws enacted to the and pro- participation, State authority granted eral Government for in Section One hereof and legislation for the relief and appropriate vide shall such other duties may, perform needy persons. aged care of law. time, time to be prescribed taxes, ad valorem taxes, The of other than levy carry legislation enacted into effect § 9. Okla. Const. Art. 25 4: authorized. thereto, is pursuant hereby § 4. Director of Public Welfare Department is now the 7. The of Public Welfare duty It shall be the of the Commission to select Services, Department the Public Wel of Human Welfare, a Director of Public who shall not be a fare as the Commission Commission is known Commission, member of the and who shall serve Services, of Public for Human and the Director as the executive and administrative officer of the Services. 56 Welfare the Director of Human Department Public Welfare. 'The of Director See, eg., City Chandler v. O.S.1991 162.1. appointed wholly ability, shall be on the basis of Services, OK Dept. ex rel. Human training experience qualifying and him or her for (stating change n. public welfare The Director administration. name); Dept. rel. Human Services State ex pleasure shall serve at the of the Commission. Malibie, (same). salary of the Director shall be fixed appears explanation change An in name Commission. provisions those of the Oklahoma Administrative The Commission shall formulate the policies, describing Code the function and structure of the adopt regulations rules effective Department Services. See O.A.C. of Human Department. administration of the duties of the 340:1-1-2(b) (1996) "In All executive and administrative duties and re- Department of Public Welfare to authorized the sponsibilities Department shall dis- Institutions, Social as the operate Department Director, charged subject approval to the changed Services and in 1980 Rehabilitative Subject of the Commission. to the control of the statutory Department of Human name Commission, the Director shall have the power Services." duty employ personnel it shall be his Department, prescribe 2: minimum standards Okla. Const. Art. qualifications personnel for such and conduct Department of Public Welfare employment, examinations before formulate sala- effectively administering purpose For the ry schedules for classified service based carrying pur- laws enacted into execution all training, experience general ability per- authority granted in Section One suant hereof, positions Department selected for in the hereby sons created a there is Public Wel- supervi- Welfare. Said of Public institutions or activities under the hereby duty respon- Department. charged fare sion of the

1083 by the Commission.10 by upon decision made DHS. relies City Springs Department v. Sand Public of of § 4 argues that Art. 25 125 DHS lfare, supra, where We one issue was (or Commission) legis with the vests DHS whether DHS had to build an insti Legislature apart the or power from lative tution. We first determined whether DHS the power this includes people, and that the statutory authority had to build a detention granted by ability perform certain acts not facility grounds oper on the of an institution rules, reg policies, and Legislature. The the by gave ated noted that a statute DHS. We for the administration ulations for DHS are express authority "capital out DHS for Department. said duties of the We of the lay", previously equated that this Court had Springs Department v. Sand of "capital expenditure" "capital outlay", with Welfare, 1980 OK Public language ... "[the and that of the statute requirement mandatory "This constitutional clearly authorizes the Commission to con policies for the formulate Commission capital improvement struct a whenever the of its duties is the effective administration improvement Commission finds the neces mandate of a constitutional indicative sary discharge responsibilities for the of its legislate people to the Commission to imposed by statute." Id. 608 P.2d at 1144. effectively necessary accomplish when . legislative a We then discussed function of body." imposed Id. upon the duties DHS) (and the Commission thus contained agen at 1146. Public officials 608 P.2d § 4: Art. 25 law, by granted by possess powers those cies statute, and those officials and constitution mandatory require This constitutional powers by agencies expand cannot those poli- ment that the formulate Commission Cannon, authority. Marley v. their own See for the effective administration of its cles where we said is indicative of a constitutional man duties by may only "agency created statute people date from the to the Commission to granted by powers those statute and exercise legislate accomplish when expand powers by own au cannot those its effectively imposed upon the duties thority." Id. 618 P.2d at 405. The duties body. This Court has committed itself to DHS, by Department are not created but proposition that of the essence by Legislature, People and the Okla. legislative function is the determination of 1,§ implemented Art. 25 Const. indeed, policy; dichotomy between ad Commission, accordance with the rules of the legislative hinges acts ministrative acts Art. Okla. Const. upon policy, the declaration of which is a function, legislative implementa argues that while the 126 DHS further traditionally may caring policy, Legislature determine that tion of that which is DHS, duty function. v. these children is a the decision administrative See Wells (1945), Childers, 165 P.2d 871 196 Okl. them, through either of how DHS cares for County # v. School District 25 Woods contractors, employees independent is a power Generally, every positive delegation herein, we indicate As constitutionally ty. department legislative power the Constitution to one officer or created is vested in Com- negation government implies a of its exercise mission and not the or its Director. by any department. other officer or Board particular power vested the Oklahoma Con- A Baker, Regents University Oklahoma nothing nondelegable, stitution policy 466. No suggests Article 25 that the Commission's consti- us, is before and we are thus not Commission legislative power tutionally is to be created controversy upon called in this to define with and its Director. shared "policies" precision scope of Art. 25 example constitutionally a created non- For an respect created the Commission with to Art. see, delegable power Bar State ex rel. Oklahoma 1 duties determined Downing, Association People. 1120, 1122, 1123, where we said that the Su- possesses nondelegable preme a constitu- Court argument posses- its 11. The of DHS based practice responsibility regulate both the tional legislative power is addressed here as if sion of asserting legislative DHS is the Commission's ethics, licensure, discipline practitioners power justification challenged of the law. activi- (1947), expressly powers granted, P.2d 575 exercise of the Hodge, 199 Okl. Parham, supra may fairly implied and Hart v. ex rel. such as be from the con State (Okla.1966)]. Under Article P.2d 142 provision granting [412 stitutional or statute the Constitution, XXV, Cannon, 4 this State's of express Marley Section powers. 1980 only upon the limitation Commis 401, 405, the (necessary OK 618 P.2d ability they rule-making is that sion's express powers implied power are department's the made in furtherance of statute); granted by HF. Wilcox Oil & Gas by provided Walker, 280, 1044, duties as law. Co. v. 1934 OK 32 P.2d 1046, are therefore constrained to hold the (authority Corporation We the of Commis Oklahoma, by pass- people of the power expressly State by sion is limited to the §§ ing Article 2 4 at a XXV and Constitu- necessary implication granted to it the vote, statutes).12 tional referendum have removed Constitution and legislative prohibition against delegation of City T28 In Oklahoma v. State ex rel. authority Department. to the Welfare Marland, 418, 37, 145 P.2d we remaining The criteria which to mea- explained that: authority sure Commission to opinion We are of the that under questioned act is: Was the action in express powers granted the constitu- Department's furtherance duties pertinent relating tion and statutes Constitution, provided in Oklahoma lands, disposal public plat- sale and § Article 4: XXV "The Commission shall ting of the same for townsites or additions policies, adopt formulate the rules and lots, to towns and the sale of town there regulations for the effective administration necessarily implied power lay was to Department."? of the duties of the Was streets, alleys, parkways, out to the decision to construct the institution public dedicate to use an easement for duty placed upon done furtherance of a purposes. such Insofar as streets and al- Department? concerned, leys necessary it is that 36, 12-18, 1146, TT Id. 1980OK at 608P.2d at provided such be or townsites or additions emphasis added. practicable to towns would not be or even statutory We then noted that had a possible. duty children, to "shelter" certain and that Marland, City Oklahoma v. State ex rel. 145 purpose. construction was for The this added). 420, (emphasis P.2d at designed construction fulfill a was statuto- ry duty. opinions Id. 608 P.2d at 1147. The con- These tell us examine relevant express implied authority to determine if power by struction was a lawful exercise of challenged permitted. conduct is "necessary the Commission This is because it was City what Springs we did Sand when accomplish effectively imposed the duties upon body express statutory authority we noted the [the Id. 608 for Commission]." P.2d capital expenditures, at 1147. DHS to make authority implied perform that possess only T27 Public officers necessary accomplish which was effective- law, granted by such as is and that ly imposed expressly the duties authority must be exercised the manner Springs, Commission. Sand provided by Exposition law. Tulsa & Fair 1144, 1147. Corp. County v. Board Commissioners statutorily charged 129 DHS is County, Tulsa 507-508; responsibility Bd., operating NORCE. 10 Brown v. State Election 1962 0.8.8upp.1992 duty may §§ recognize OK P.2d 144. 1409. This 369 We has, generally, re-delegated by not be impli officer or DHS to some other entity. applicable delegate maxim is powers express cation and in addition to the ly given by statute, pow potestas delegari, potest delegated Constitution or such mon au ers necessary as are for the due and efficient thority re-delegated. cannot be Bushert v. Commission); 0.$.2002 (State may expressly grant poration 12. The an im- See, 0.$.2001 plied (Cor- Rates). power. eg., Property Casualty Board for 334, 339; sion, assessment, Hughes, 1996 OK evaluation and and dis Bar Association ex rel. Oklahoma charge procedure. 0.8.8upp.1997 Livshee, 1414.1 The Commission Human Ser n. 1. previously observed DHS: 773.13 We hereby vices "authorized directed to discharges patients, admits promulgate and amend rules disputes, may charge cause of residents' implement provisions of this section." employees, 4. termi termination of 1414.1(J). §at Id. safety if the health or nate the contract by Liberty, endangered $382 5. owns residents is Legislature The formulates payments, 6. holds the license for the certain expresses policy and then of the State via its provide facility, to own and and 7. continues legislative written enactments. Stewart v. facility. general maintenance for the 902, 905; Harris Mathews, v. 1928 273 P. OK 1130Two characteristics of the contractual possesses 358. The a constitu Commission Liberty arrangement important: are must tionally granted legislative power to formu facility operate in accordance with the policy express a late and declare or it via its Develop- policies of and the established DHS Division, enactments in the of written form rules for and 2. mental Disabilities Service Department. City Springs full to ob- See Sand shall have and free access DHS inspect Liberty's operation Welfare, Public P.2d at serve and 608 time, any notice. Greer Center at without where we said that "This Court has duty re-delegate statutory cannot its proposition DHS committed itself to the another, facility thus operating the to legislative essence of the function is the de policies for Lib- must have established indeed, policy; dichotomy termination of erty's management to follow so that DHS legislative between administrative acts statutory duty through acts performs its upon hinges policy, acts the declaration of Liberty Liberty's employees. The function, legislative imple which is a policies by creation of those DHS and the policy, mentation of that which is traditional power inspect exercise of the to observe ly party an function." administrative No Liberty compliance policies with for those by points promulgated rule to Com delegating its required prevent to DHS from (or DHS) outsourcing relevant to mission Liberty. statutory duty to management placed at institutions under authority by Legislature. of DHS general possesses The a Commission no its states that rule is needed because adopt to rules for the constitutional manage imposed Department, on the and a decision to outsource is an internal duties statutory specific authorization and direction ment decision. adopt promulgate and all

to "to rules upon City 133 DHS relies Sand necessary carry provi regulations out the 1411(3).14 Springs v. § Welfare, Public sions of this act." 10 0.8.1991 proposition like swpra, for the that "decisions Facility is located on the The Greer Center Springs" ... "need the one made Sand Enid, separate grounds of is a NORCE NORCE, pursuant rulemak- not made to the formal entity pro and the statute ing procedures City of the APA." In Sand person's additional eriteria for a admis vides sion, any legislative point standards creat- Walker, Wilcox Oil & Gas Co. v. In H.F. People, or the and this ed we said that the maxim delegation power prohibiting has some exception not us for to the maxim is before in the con- one of which occurs application. qualifications, exercising leg- board text of an administrative requires power. qualification islative This origi- phrase to statutes 14. The "this act' refers guided by legislative power of the board to be (1963 Laws, Okla. Sess. enacted in 1963 nally procedural Leg- set substantive limits 37), §§ 301- Ch. later codified at 56 O.S8.1981 Party islature. Id. at 1047. See also Democratic (1982 Okla. and then renumbered in 1982 Oklahoma Estep, 312), 0.$.1991 Laws, Sess. ch. and codified (legislative 271, 276 standards §§ 1410, 1411, 1412, 1413, 1406, 1408, 1409, delegated legislative power). parties do not and 1417. 1414, 1415, 1416, rely upon any procedure rule or of the Commis- Springs we relied former O.S.1971 May agency a state exercise management internal every discretion and deter proposition that not deci 301 for the mine perform its constitutional or statuto by the DHS must be the form sion made ry duty using independent contractor? a "rule" does not of a rule because include - Again, depends upon the answer whether the concerning only the internal "statements agency possesses express implied authori agency affecting management of an not ty make particular such a decision in a private rights...." Springs, Sand Generally, Leg circumstance. the Oklahoma language 608 P.2d at 1152. Similar was in anticipated islature bas that a state the Administrative Procedures Act at independent pro use an contractor Liberty time the contract with was created.15 vide agency. services to state The Okla agree O.S.Supp.1999 We that 75 250.3does Legislature adopted homa Pur the Central require every agency decision to be in Act, 0.$.1991, chasing seq., 85.1 et power the form of a rule. But an exercise of amended, govern expenditures ageney pursuant must be to either an governmental agencies various acquiring power granted express implied law. services, goods or exempted by and unless Exposition Corp. Tulsa & Fair v. Board of Legislature, applies the Act to DHS. County County, Tulsa Commissioners su Dept. Indiana Nat. Bank v. State Human Bd., pra; supra. Election Brown Services, 63- provides procedures 64. That. Act for a state Department pos 34 The Director of the items, agency's acquisition products, sup authority employ sesses per constitutional plies, services, equipment. 0.8.Supp. 74 employme sonnel and set for that standards 85.2(A), added). § (emphasis 1999 controversy disputes nt.16 No one in this argue 136 may Plaintiffs that DHS not authority. anyone question that Nor does management outsource the of its institutions authority ageney of a state curtail the specifically unless a grants statute that au employment agency, of individuals from that thority. They argue Legislature that the has particular employ or to abolish or individual given authority such agencies, to certain but positions agency. ment in a state A state not managing to DHS for these institutions.17 agency possesses authority to decrease NORCE and the Greer Center are institu employees employed number of at that tions that were transferred to the control of agency employment positions by and remove DHS from the Board of Mental Health and using State Government Reduction in Services, Substance Abuse and contracts Force and Severance Benefit Act. 74 made that binding upon Board were DHS. O.S.Supp.1997 § § 840-2.27A 840-2.27H. $ § 10 0.8.1991 provides 1410. While 1411 appeal The employees record on states that expenditure authorization for the of funds for provided statutory were package benefit certain categories, broad repair such as deciding voluntarily for those terminate buildings, capital "land and outlay," other their employment prior state to the outsourc none of the relating specifically statutes ing. § O.S.Supp.1999 See 74 840-2.28. language NORCE and Greer contain vesting Clearly, agency may a state reduce num powers contractual administering DHS for these ber Legislature employees. institutions.18 The of its has (c), states, 250.3(15), § O.S.Supp.1999 75 authority Recreation Commission's over Quartz Mountain Arts and Conference Center that a "rule" does not include part, "statements Lodge); concerning only O.S.Supp.2000 the Texoma memoranda 10 the internal 7304-1.3(C)(4) (C)(3)(c) (contracts § management relating affecting pri of an not juvenile facilities); to for 0.S$.Supp. detention 63 rights procedures vate public available to the § (University 3203, Authori- Hospitals Act); 85(i), (Oklahoma ty O.S.Supp.1995 Aeronautics Commission enter into con- 16. See Const. Okla. Art. 25 at note tracts powers execution of the supra. act). granted byit this argue outsourcing management Plaintiffs that provides 18. Statute that the Greer Center Admis- statutorily O.S.Supp.1998 authorized independent sions Committee shall include "an 1803.1a, (Oklahoma §§ psychologist 1803.1 & psychiatrist Tourism and on contract with the given Legislature has The au specific contractual given thus administering duty of NORCE Legislature has every duty thority for Center, vesting specifically Thus contractual but without DHS. given Greer necessarily implied from the must be perfor itself powers in DHS for the contractual Marley v. duty given to DHS. nature duty. do not The Plaintiffs mance of that Canmon,swpra. challenge authority of DHS to expressly cer recognized Legislature has for the benefit of for some services T37 contract by focusing powers of DHS tain contractual upon the Their attack the residents Greer. enters that DHS of contracts "upon the terms upon the idea outsourcing is instead based DHS contracts example, when For into. customarily pro employees have that DHS Plan with Medicaid to the State pursuant management operational ser vided or res provide inpatient certain facilities they appear to draw The conclusion vices. Legisla health services mental idential outsourcing thus is that cannot from this fact to contain required such contracts has ture historically "necessary," in the sense that O.S.Supp.1992 provisions. specific by an only implied powers possessed Further, rec Legislature has 2200.19 are neces board are those which officer or for services does contract ognized that DHS sary discharge effective exercise and instances, when the in some expressly conferred powers and duties settling statutory requirements makes King, imposed. City Wilburton v. See contracts. upon such claims based 1076-1077. We § 225.1.20 O.S.Supp.1992 immediately initiate shall C. The lan- Services," but of Human procedures termination of said contract Depart- for the expressly guage authorize does not O.S.Supp. when: contracts to create such ment facility continually added). contracting violates the 1414.1(E), 1. A (emphasis section; required by or this terms and conditions facility pose seri- The conditions within O.S.Supp.1992§ 200d: 2. 19. 56 patients of serious harm to harm or threat ous provider con- (18) Medicaid Plan 200d. State years age eighteen or who are or residents and conditions-Termination-An- tracts-Terms purpose of for the and have been admitted under inspection of facilities dependency nual treat- or chemical mental health Med- Every pursuant to the State contract A. ment. Department into between the Plan entered Department icaid shall coordinate D. The provide any appli- that Services and facilities Department of Human and other of Health to inpatient mental health services licensing certifying or residential to ensure or cable (18) younger years age that, eighteen practicable, or annual persons possible and whenever through eligible and hospitals, for assistance related institutions inspections who are or be Security by required Act shall or federal the federal Social state Title XIX of child care facilities jointly. be conducted law shall care, terms and conditions incorporate provided. to be and services treatment 0.S.Supp.1992§ 225.1: 20. 56 be sub- and conditions shall B. Said terms place- in stantially those included the same as agreements au- regarding § 225.1. Records freestanding, as agreements for acute or pur- ment for reconciliation to settle claim thorization facility, psychiatric care for appropriate for the purchases poses contracts or for custody legal youth who are in children and shall Department of Human Services A. The any agree- Services and shall regarding of Human of the records maintain detailed include, not be limited to: claim made but to settle a authorizations ments or care, counseling any ser- Primary treatment and contract or purposes for for reconciliation items, materials, supplies or ser- purchase vices; be but not shall include Such records vices. services; 2. Educational physi- by attending parties in the involved visitation 3. Face-to-face limited to identification cian, discharge planning, re- plans, treatment materials, items, reconciliation, identification issue, among originally progress and other ports equipment of the child services on the owing of settlement. necessary appropriate; and amount reports due as purposes of rec- Any made for B. settlement medications; 4. Use purchase of any contract or for onciliation materials, diseases; 5. Communicable items, shall equipment or settlement 6. Visitation correspondence; seclusion, writing by restraints, approved the administrative in physical force be 7. Use of making settlement division such of the head measures; and disciplinary care, of Human the Director treat- Inspections and reviews provided. Services. and services ment interpretation disagree with Plaintiffs' that The judgment of the District Court is thus part affirmed in part, necessary operate and reversed in defines what is to a state the matter agency by customarily per remanded the District Court what has been time perhaps formed in a different and under proceedings for further consistent with this example, different circumstances. For opinion.

appellate laundry that record states HARGRAVE, C.J., HODGES, premises, 1 40 on the the clients is done but linens LAVENDER, OPALA, JJ., laundry KAUGER, and other are outsourced. laun The dry building at NORCE is vacant and used Concur. storage "it because is more economical" WATT, V.C.J., Concurs in Parts I & laundry. to outsource the Plaintiffs' view of II; Dissents in Part IIL. authority, if applied contractual consis BOUDREAU, J.,

tently, outsourcing is that services such Concurs in I as Parts II; laundry improper. & in interpreta Plaintiffs' Concurs Result Part IIL. authority requires tion DHS contractual WINCHESTER, J., Concurs Part every service a client receives at Greer I; Dissents in II IIL. Parts & provided by employee, a state unless Greer historically provided has WINCHESTER, J., the service other I 44 Concurring part dissenting part. necessary Implied means. thus occurred, becomes defined what has as I concur in I. I Part dissent Part II opposed by given what is in a set parents because the taxpay- have of ctreumstances. I ers. dissent to Part III. provisions agreement management the final in the con- 139 The trial court issued provide tract for such control DHS that injunction issues, and determined two managing company could not even be possessed standing Plaintiffs and that independent considered an contractor. given "specific authority" had not agree plain outsource. We taxpayers possessed standing. tiffs as We

must reverse the decision of the trial court as parents guardians, 2002 OK 73 status, apart taxpayer from because of the HARGRAVE, Carter R. Legisla unresolved issue of When the fact. Plaintiff/Appellant, duty ture part has created a on the of DHS specifically stating without the contractual DHS, authority possesses whether DHS ADJUSTMENT, TULSA BOARD OF particular authority dependent contractual is Defendant/Appellee. whether that contractual 97,474. No. perform duty given litigated DHS. This issue was not in the Supreme Court of Oklahoma. statutory District "specif- Court. The lack of Sept. ie authority" agency's for an contractual au thority agency's is not determinative of that authority. contractual The District Court

injunction against DHS is thus reversed. determining (3) "necessary" what is withholding outsourcing power whether perform might its duties the trial court consid- purpose would be inconsistent with the (1) Legislature provided er whether the a mecha- statutory provision, some constitutional or Board follow, nism for DHS to Okla. Tax Comm. v. Tubbs, Veterinary Examiners Medicine v. Fortinberry, 1949 OK 201 Okla. (4) OK whether the 301, (2) history whether the statutes and their Legislature appropriated expendi- funds for the relating suggest to DHS and Greer Center Center, outsourcing Lingo-Leeper ture of at Greer scheme, implied power part statutory of a Carter, Lumber Co. v. 161 Oka. 5, City Hugo Employees v. State ex rel. Public 17 P.2d 365. Bd., Relations

Case Details

Case Name: Oklahoma Public Employees Ass'n v. Oklahoma Department of Central Services

Court Name: Supreme Court of Oklahoma

Date Published: Sep 24, 2002

Citation: 55 P.3d 1072

Docket Number: 94,985

Court Abbreviation: Okla.