�0 The Attorney General has received your request for an official opinion asking, in effect:
Are the statutory provisions of 74 O.S. 85.4(G) (1987), unconstitutional to the extent that they would have the effect of taking away authority from the Board of Regents for the Agricultural and Mechanical Colleges?

�1 All institutions of higher education in Oklahoma supported wholly or in part by direct legislative appropriations are now constitutionally included within the rubric of the "Oklahoma State System of Higher Education." Okla. Const. Article XIII-A. This System is generally governed by the Oklahoma State Regents for Higher Education, a nine-member board appointed by the Governor and confirmed by the Senate. Okla. Const. Article XIII-A , Section 2. The ordinary and regular management, supervision, and control of the several institutions comprising the State System, however, is vested with a second tier of governing boards, some of which are constitutionally mandated and some of which are statutorily created. The Board of Regents for the Oklahoma Agricultural and Mechanical Colleges has control and supervision over the agricultural and mechanical schools and colleges maintained by the State, including Oklahoma State University. Okla. Const. Article VI , Section 31a.

�2 Your question revolves around the extent of the constitutional authority vested with the Board of Regents for the Oklahoma Agricultural and Mechanical Colleges to independently control the internal operations of its respective' institutions regarding lease-purchases of data processing or other equipment vis-a-vis any statutory limits on such authority that might be pronounced by the Legislature. Highlighted in your question are the provisions of 74 O.S. 85.4(G) (1987), which state:

(Emphasis Added).

�3 This statutory provision, amended in the pertinent part emphasized above in 1985, altered the Central Purchasing Act of 1974, which is the primary statutory codification governing acquisitions by state agencies. In general terms, the Central Purchasing Act requires all contractual services, supplies, equipment or materials used, consumed or spent by state agencies in the performance of their official functions to be acquired exclusively by presentation of requisitions to the Purchasing Division of the State Office of Public Affairs. 74 O.S. 85.4(A) (1987). Certain exceptions to this general rule are found in other statutory provisions, notably 74 O.S. 85.12 (1987), and the terms of 74 O.S. 85.3 (1987) have long expressly decreed that the "provisions of the Oklahoma Central Purchasing Act shall not apply to . . . institutions of higher learning."

�4 Nonetheless, the amendments to the Act made by the Fortieth Legislature in 1985 in House Bill 1950, of which 74 O.S. 85.4(G)'s (1987) language is a part, would ordinarily control over the general language of 74 O.S. 85.3 (1987), insofar as purely statutory conditions are concerned, by virtue of 75 O.S. 22 (1987). As evident from a facial reading of 74 O.S. 85.4(G), lease-purchases of data processing or other equipment by any state agency, whether or not such agency is subject to the provisions of the Central Purchasing Act, are required to be processed by competitive bids through the Purchasing Division of the Office of Public Affairs. This requirement, however, insofar as it might conflict with organic constitutional limitations upon the power of the Legislature, would be infirm and invalid. Board of Regents of the University of Oklahoma v. Baker, 638 P.2d 464, 466 (Okl. 1981); and State ex rel. Grand Jury of McCurtain County v. Pate, 572 P.2d 226 (Okl. 1977). Such limitations on legislative authority may be implied as well as expressed in the Constitution. Baker, supra; and Grim v. Cordell, 169 P.2d 567 (Okl. 1946).

�5 Similar questions were considered previously by the Attorney General in an opinion addressed to Roy T. Hill, Chairman of the Board of Regents for the Oklahoma Agricultural and Mechanical Colleges, and issued on November 9, 1959. The opinion noted that the Board of Regents for the Oklahoma Agricultural and Mechanical Colleges created by Article VI , Section 31a is the successor of the board of regents created originally by Article VI , Section 31 to our Constitution, which board had been examined by the Oklahoma Supreme Court in Trapp v. Cook Constr. Co., 105 P. 667 (Okl. 1909). Trapp, in turn, had considered the constitutional authority of that board of regents, as opposed to that of a 1909 act of the Legislature creating the Board of Public Affairs and initiating, in effect, a "central purchasing act."

�6 In Trapp, the Supreme Court noted that the agricultural and mechanical college at Stillwater had been established in 1890 by a statutory act of the Territorial Legislature, which act had also vested the government and management of the school in a board of regents. That board of regents had been specifically empowered by the same act to enter into contracts and do all things necessary to make the school effective as an educational institution. Id. The Court further noted that the board of regents constitutionally created by Article VI , Section 31 was the successor to the original board created in 1890.

�7 The Court adopted the position that where the constitution of a state creates an office without specifying the duties relative thereto, the duties, powers and authority of the office are those which are attached to the office at the time of the adoption of the constitutional provision. Id. at 669. While additional powers may be required of the office by subsequent statutory enactment, none vested by the constitution may be taken away by the Legislature. Id. The Court concluded by ruling that the adoption of the portion of Article VI , Section 31, which had conferred all the preexisting powers of the predecessor board of regents upon the new constitutional body, had ordained the new board with authority independent of the Board of Public Affairs to oversee acquisitions related to the operation of the school, which power could not be limited by statute.

�8 The 1959 Attorney General's Opinion referred to above, examined the Trapp rationale and concluded by opining that Article VI , Section 31a, as adopted in 1944, vested in the board of regents created thereby all of the powers, duties, and authority conferred on the territorial predecessor board and the board of regents viewed in Trapp. Accordingly, the Opinion held the mandatory provisions of the "Central Purchasing Act of 1959" were unconstitutional to the extent they would have the effect of taking away from the Board of Regents the power to acquire any and all supplies, equipment, materials, and services to be used, consumed or spent by any of the institutions under its constitutional control or as they would attempt to vest any of this power relative to effectuating their education missions in any other officer or agency, such as the State Purchasing Director or Board of Public Affairs. The Opinion also decreed that the Board of Regents could not lawfully be required to present a requisition for such acquisitions to the Purchasing Division of the Board of Public Affairs as a prerequisite to such acquisitions, so long as the institution involved was engaged in the performance of regular functions assigned to it by the State Regents.

�9 The Trapp rationale, however, has since been greatly limited in scope by the Supreme Court. In Board of Regents of the University of Oklahoma v. Baker, 638 P.2d 464 (Okl. 1981), the Court reviewed a dispute between the Board of Regents of the University of Oklahoma, a constitutional governing board of control, and a number of faculty members employed by the University. The Legislature, in Senate Joint Resolution No. 9 of the 1979 Legislature, Okl. Sess. Laws 1979, p. 918, had mandated a uniform pay increase for all state employees. The Board had not complied with that directive, and the faculty members in question had brought an original action in the Supreme Court to compel compliance with the Joint Resolution's dictates. The Court made note of the primary Trapp rationale, id. at 466, and ultimately ruled that determinations regarding salaries of university employees were such integral decisions to the operation of the institution that the Legislature had no authority to mandate Regent compliance, due to the Board's constitutional prerogatives. In so ruling, however, the Court also noted that the Board's power was not without some limitation by the Legislature.

�10 Citing San Francisco Labor Council v. Regents, Etc., 608 P.2d 277 (Cal. 1980), the Court noted that the Supreme Court of California had reviewed the constitutional authority of the Board of Regents of the University of California, a constitutional entity in that state similar to the University of Oklahoma's Board. Our Court mentioned with particularity language from the California court advising that the University of California, despite its constitutional nature, was not "completely free from legislative regulation." Baker at 468.

�11 Three areas of permissible legislative regulation were mentioned by the California court; first, the power of appropriations, and the indirect control over internal University affairs that could be effected thereby; second, general police power regulations governing private persons and corporations; and third, legislation regulating public agency activity not generally applicable to the public, when the legislation regulates matters of statewide concern not involving internal university affairs. After referring to these areas at length, our Court noted that "constitutionally assured independence cannot be equated with complete immunity from legislative regulation," while ruling that the salary concerns then at issue were such an integral part of the power to govern the University, and a function so essential to preserving Board independence, that the Board autonomy in that area had to be upheld. Id. at 469.

�12 In this instance, the third area of permissible regulation mentioned in Baker legitimizes the provisions of 74 O.S. 85.4(G). While the Legislature has historically exempted institutions of higher learning of the State from many procedural requirements set down for other state entities, the Legislature in the past few years has made a concerted, deliberate effort to systematize and make uniform numerous areas relative to operating these public organs. For example, in 1987, the Legislature mandated that governing boards of institutions in the State System of Higher Education, along with many other entities, comply with certain rule-making procedures outlined in the Administrative Procedures Act. Compare, 75 O.S. 301(1) (1986) with 75 O.S. 250.4(A) (1987). Similarly, the Legislature has long decreed that the various governing boards of regents be governed by uniform requirements set forth by the State Regents as to accounting and other fiscal activities of the institutions, see 70 O.S. 3903 (1981), and that the State Regents operate an allotment system for disbursal of appropriated funds that is similar to that system overseen by the State Budget Director. Id.

�13 Likewise, 74 O.S. 85.4(G), being broadly applicable to all state entities, regardless of whether they are otherwise subject to the terms of the Central Purchasing Act, is indicative of legislative intent to address a statewide concern regarding lease-purchases of equipment by state entities. However, it is important also to note at this juncture that under the Baker analysis, even if some matter is of a statewide concern to public entities, and not generally applicable to the public, it must still be declared constitutionally infirm if the activities at issue impinge upon some integral component of the educational mission of the State System's institutions.

�14 74 O.S. 85.4(G) does not invalidly infringe upon the prerogatives of the Board of Regents of the Agricultural and Mechanical Colleges because the statute does not require that the Board abdicate or relinquish any of its decision-making functions relative to engaging in lease-purchase agreements of data processing or other equipment. Rather, all the statute's language requires is that all state entities, including this Board, "process" such agreements (by competitive bid) through the office of Public Affairs.

�15 Under the Central Purchasing Act, the Office of Public Affairs' Central Purchasing Division plays no role in determining to what degree a state agency may need certain services or equipment. Such decisions are made by the agency, itself, and the Office of Public Affairs plays a role in the process only upon receipt of a requisition, transmitted to it by the agency, for services or equipment. 74 O.S. 85.4(A) (1987). Rather, the Office of Public Affairs acts in a special statutory agency relationship with state agencies, making purchases on their behalf. A.G. Opin. No. 84-066. The Director of Central Purchasing of the Office of Public Affairs ordinarily does have the ultimate authority to determine to whom a particular contract will be awarded. However, the requisitioning agency must be given a voice on the classifications and specifications of the equipment desired to be acquired, and the Purchasing Director's power to establish such matters is conditional upon advance good faith consultation with the agency. Such consultation may not be undertaken in an arbitrary or capricious manner. Id. Additionally, of course, a requisitioning agency dissatisfied with an acquisition may compel the Purchasing Director to review and reconsider the award of any contract. Rules of Central Purchasing Division: "How to Sell to the State of Oklahoma," Article X. If the requisitioning agency is still dissatisfied, it may appeal to higher administrative and judicial authorities. See, Rules and Regulations, State Office of Public Affairs, � I; 74 O.S. 318 (1981).

�16 74 O.S. 85.4(G) does not impact upon the Board's ability to determine when and to what extent an educational institution needs such equipment on a lease-purchase basis, nor does it infringe upon the Board's right to itself determine to whom bid awards are to be made in these types of transactions. Rather, all that is contemplated by 74 O.S. 85.4(G) is that the Board, like other entities of the State, utilize the uniform purchasing procedures mandated for such acquisitions by processing its desired purchases in this field by competitive bidding through the Office of Public Affairs. The ultimate authority to determine which bidder is the lowest and best bidder remains vested with the Board, unlike the situation present when agencies lacking the unique constitutional authority of the State Board make such purchases.

�17 The Opinion dated November 9, 1959, and addressed to Roy T. Hill, is withdrawn. To the extent any other previous Opinion issued by this office may be in conflict with this Opinion, it is modified to conform with the counsel given herein.

ROBERT H. HENRY
ATTORNEY GENERAL OF OKLAHOMA
MICHAEL SCOTT FERN
ASSISTANT ATTORNEY GENERAL
DEPUTY CHIEF, CIVIL DIVISION