Question Submitted by: The Honorable Paul R. Anderson, District Attorney, District Nine
1983 OK AG 219
Decided: 03/02/1984
Oklahoma Attorney General
Cite as: 1983 OK AG 219, __ __
¶0 The Attorney General has received your request for an official opinion asking, in effect:
1. Does 61 O.S. 3 (1981) require employees of elected county officers to work an eight-hour workday; and
2. If the answer to the first question is yes, would the same provision necessarily require county officers to maintain office hours of not less than eight hours per workday?
I.
¶1 Article XXIII, Section 1 of the Oklahoma Constitution provides:
"Hours of labor on public work
"Eight hours shall constitute a day's work in all cases of employ ment by and on behalf of the State or any county or municipality."
¶2 The corresponding enabling statutes are found at 61 O.S. 3 / 61 O.S. 4 and 61 O.S. 5 (1981). Section 61 O.S. 3 provides:
"Working day for public employees
"Eight (8) hours shall constitute a day's work for all laborers, workmen, mechanics, prison guards, janitors of public institutions, or other persons now employed or who may hereafter be employed by or on behalf of the state, or by or on behalf of any county, city, township or other municipality, except in cases of extraordinary emergency which may arise in time of war, or in cases where it may be necessary to work more than eight (8) hours per calendar day for the protection of property or human life...."
¶3 The answer to the first part of your question depends upon a determination of whether elected county officials and their employees are within that class of persons contemplated by the provisions of Okla. Const., Article XXIII, Section 1 and its enabling statutes, 61 O.S. 3 / 61 O.S. 4 and 61 O.S. 5 (1981). This identical issue was addressed by the Oklahoma Supreme Court in White v. Wint, 638 P.2d 1109 (Okl. 1981). In that case, the Supreme Court determined that White, a Biologist I with the Department of Wildlife Conservation, did not occupy the status of the persons enumerated in Okla. Const., Article XXIII , Section 1 and 61 O.S. 3 / 61 O.S. 4 and 61 O.S. 5. In explaining the determination thus made, the Supreme Court stated:
"The provisions of Title 61, Sections 3 and 4 relate to 'laborers, workmen, mechanics, prison guards, janitors of public institutions, or other persons now employed . . . by . . . the State.' As evidenced there is an enumeration of specific words constituting a class which is not exhausted by the enumeration and which is followed by a general reference ('or other persons'). In such a situation, 'the meaning of the general words will be ordinarily presumed to be restricted by the particular designation [of subjects or classes of persons enumerated in the statute] and to include only things or persons of the same kind, class,'or nature as those specifically enumerated, unless there is a clear manifestation of a contrary purpose.' Walton v. Donnelly, 83 Okl. 233, 235, 201 P. 367, 369 (1921)." 638 P.2d at 1114.
¶4 Therefore, the phrase "other persons now employed" (61 O.S. 3 (1981))is restricted and described by the terms, "laborers, workmen, mechanics, prison guards, and janitors of public institutions," and does not operate to expand this restricted class of persons to "every" employee of the State.
¶5 It was further determined in White v. Wint, supra, that "[t]he protection of the health and welfare of persons employed to perform manual labor requiring great physical effort" constitutes the purpose for which the provisions of Okla. Const., Article XXIII, Section 1 and its enabling statutes were enacted. It was recognized as early as 1909 that the manifest purpose of Okla. Const., Article XXIII, Section 1 was to promote the industrial welfare of the people by fixing a high standard for employees on public works. Byars v. State, 102 P.804 (Okl.1909). The purpose of the foregoing constitutional and statutory provisions was to place a limitation upon the number of hours worked by that particular class of employees, and in no manner constitutes a requirement as to the number of hours which must be worked.
¶6 The duties and responsibilities of county officers and their employees, though they may be at times physically demanding, are not analogous to those of "laborers, workmen, mechanics, prison guards" and janitors of public institutions." County officers and their employees are not therefore subject to the potential abuse contemplated in the employment situations listed in the statutes. White v. Wint, supra.
¶7 The answer to the first part of your question must therefore be in the negative. The provisions of 61 O.S. 3 (1981) (Okla. Const., Article XXIII, Section 1) do not require that employees of elected county officials work an eight-hour day.
¶8 The second part of your question must likewise be answered in the negative initially for the reasons previously noted, but additionally, because a plain reading of the provisions of Okla. Const., Article XXIII, Section 1 and 61 O.S. 3 / 61 O.S. 4 and 61 O.S. 5 (1981) do not, directly or implicitly, dictate or regulate the office hours of any public officer. The intent of the Legislature must appear from the language of the Act itself, either expressly or by implication. Meaning cannot otherwise be given to an Act unless provided for somewhere therein by its terms. Lingo-Leeper Lumber Co. v. Carter, 17 P.2d 365 (Okl. 1932).
II.
¶9 Our inquiry does not end here, however, for while our research has revealed no constitutional or statutory authority which imposes upon county officers the duty to maintain specific daily office hours, there is some authority that county officers must keep their offices open for the benefit of the public "during all business hours of the day."
¶10 Title 51 O.S. 24 (1981) provides that:
"It is hereby made the duty of every public official of the State of Oklahoma, and of its subdivisions, who are required by law to keep public records pertaining to their said offices, to keep the same open for public inspection for proper purposes, at proper times and in proper manner, to the citizens and taxpayers of this state, and its subdivisions, during all business hours of the day; provided, however, the provisions of this act shall not apply to income tax returns filed with the Oklahoma Tax Commission, or other records required by law to be kept secret." (Emphasis added).
¶11 The Legislature has defined "record" at 67 O.S. 153(b) (1981) as follows:
"Record means document, book, paper, photograph, microfilm, sound recording, or other material, regardless of physical form or characteristics, made or received pursuant to law or ordinance or in connection with the transaction of official business but does not include library and museum material made or received solely for reference or exhibition purposes."
¶12 The officers defined as "county officers'' are provided for in 19 O.S. 161(1) (1981) which provides:
"As used in this act:
"1. 'County Officer' means the county clerk, county commissioner, county assessor, county superintendent of schools, district court clerk, county treasurer and county sheriff...."
¶13 All of these county officers are obligated to prepare, maintain, safeguard and keep some kinds of "records." 51 O.S. 24 (1981). County clerks have numerous duties to prepare, file and maintain various records, 19 O.S. 244 - 19 O.S. 300 (1991), the most widely known of which is to index, file and record property records of the county. 19 O.S. 284 - 19 O.S. 300 (1981). County commissioners must keep records of their orders and decisions, 19 O.S. 333 (1981), and must further maintain records of warrants denied, paid, cancelled or destroyed. 19 O.S. 335 - 19 O.S. 337. The county sheriff must maintain and keep certain jail records. 57 O.S. 48 / 57 O.S. 61 - 57 O.S. 63 (1981). County treasurers are entrusted with various recordkeeping duties pertinent to the official business of that office, including receipt and disbursement of monies utilized by the county. 19 O.S. 625 (1981), et seq. The county assessor must prepare and keep a "land list" identifying all real estate in the county, 68 O.S. 2470 (1981), for tax assessment and collection purposes. County superintendents of schools are required to keep records of teacher's certificates, their official acts and statistical and financial reports. 70 O.S. 4-104 (1981). District court clerks are charged with recording duties relating to the court fund, 20 O.S. 1307 (1981), deposit of monies, 19 O.S. 681 (1981), assignment of cases, 20 O.S. 91.2 (1981), and many others.
¶14 This list, of course, is far from exhaustive, but it is clear that every county officer maintains some type or types of "records" pursuant to the duties as county officer. 51 O.S. 24 (1981).
¶15 The purpose of public recordkeeping statutes is to enable the public to have access to the records of a public office. In addition, such statutes have the intended purpose of allowing individuals to use such records for their private purposes, such as engaging in the business of abstracting. 1 O.S. §§ 1-14.
¶16 The Oklahoma Supreme Court, in recognizing the above principles, has had an occasion to construe the phrase "regular business hours" in State ex rel. Cartwright v. Oklahoma Industries Authority, 629 P.2d 1244 (Okl. 1981).
¶17 Among many issues decided by that case relating to public officers, trusts and recordkeeping duties, the Supreme Court interpreted the phrases "all business hours," citing 51 O.S. 24 (1981), supra, and "regular business hours" as provided in 60 O.S. 178(D) (1981) relating to public trusts. Section 178(D) of Title 60 provides in pertinent part:
". . . Records of the trust and minutes of the trust meetings of any public trust shall be written and kept in a place, the location of which shall be recorded in the office of the county clerk of each county, wherein the trust instrument shall be recorded. Such records and minutes shall be available for inspection by any person during regular business hours...."
¶18 In interpreting these phrases, the Oklahoma Supreme Court adopted the construction of a similar federal rule which provided that the clerk's office be open "during business hours." State ex rel. Cartwright v. Oklahoma Industries Authority, supra, at 1251:
" 'The term "business hours" is not defined in the rule. In its natural sense, the term means those hours during which persons in the community generally keep their places open for the transaction of business.' " (quoting Casalduc v. Diaz, 117 F.2d 915, 916 (1st Cir. 1941)).
¶19 Thereafter, the Court made the following specific holding at 629 P.2d 1251:
"Accordingly, we hold that the phrase 'regular business hours' means those hours during which persons in the community keep similar businesses open for the transaction of business.
* * *
"[W]e think it appropriate that the term 'regular business hours' of such Trust be dictated by the 'regular business hours' of most State offices. As is commonly known, most State offices are not open on the weekend and on State holidays, but are open on week-day mornings and afternoons for approximately eight hours. This being the case, we hold that the phrase 'regular business hours', as used in 60 O.S. 178 (1976), requires a public trust to make its records available for public inspection on week-day mornings and afternoons." (Emphasis added).
¶20 It is, therefore, the official opinion of the Attorney General that:
1. Neither the provisions of Okla. Const., Article XXIII , Section 1, nor the enabling statutes, 61 O.S. 3 / 61 O.S. 4 and 61 O.S. 5 (1981) require employees of elected county officers to work an eight-hour workday, nor do they require elected county officers to maintain office hours of not less than eight hours per workday.
2. Elected county officers, as defined in 19 O.S. 161 (1981), in performing recordkeeping duties, are required by the provisions of 51 O.S. 24 (1981) to make their records available to the public on weekday mornings and afternoons, excluding holidays, for approximately eight hours.
MICHAEL C. TURPEN
ATTORNEY GENERAL OF OKLAHOMA
ALAN B. FOSTER
ASSISTANT ATTORNEY GENERAL
| Cite | Name | Level |
|---|---|---|
| None Found. |