The opinion
ATTORNEY GENERAL LOVING HAS ASKED ME TO RESPOND TO YOUR LETTER REQUESTING AN OPINION ADDRESSING, IN EFFECT, THE FOLLOWING QUESTION:
WHETHER THE AGGREGATE AMOUNT OF A MIX OF AGRICULTURAL AND SMALL BUSINESS LINKED DEPOSIT LOANS ADMINISTERED BY THE STATE TREASURER IS CAPPED AT FIFTEEN PERCENT (15%) OF ALL INVESTABLE STATE FUNDS UNDER THE CONTROL OF THE STATE TREASURER OR WHETHER EACH CATEGORY, AGRICULTURAL OR SMALL BUSINESS, IS SUBJECT TO A SEPARATE FIFTEEN PERCENT (15) CAP OF ALL INVESTABLE STATE FUNDS UNDER THE CONTROL OF THE STATE TREASURER FOR A TOTAL CAP OF THIRTY PERCENT (30%)
BECAUSE THIS QUESTION CAN BE ANSWERED BY REFERENCE TO THE OKLAHOMA STATUTES, THIS OFFICE HAS DECIDED TO ANSWER YOUR REQUEST THROUGH THIS INFORMAL LETTER. THEREFORE, THE DISCUSSION THAT FOLLOWS IS NOT AN OFFICIAL OPINION OF THE ATTORNEY GENERAL BUT RATHER MY CONCLUSIONS THAT HAVE BEEN REACHED AFTER CAREFUL RESEARCH AND ANALYSIS OF THE QUESTION YOU HAVE RAISED.
DETERMINING WHETHER THE AGGREGATE CAP FOR AGRICULTURAL AND SMALL BUSINESS LINKED DEPOSIT LOANS IS 15% OR 30% REQUIRES AN ANALYSIS AND CONSTRUCTION OF THE LANGUAGE USED IN 62 O.S. 88 .8 AND 2 O.S. 1766 (C)(1) (1991). WORDS FOUND IN STATUTES ARE TO BE UNDERSTOOD IN THEIR ORDINARY SENSE EXCEPT WHEN A CONTRARY INTENTION PLAINLY APPEARS. 25 O.S. 1 (1991); HESS V. EXCISE BOARD OF MCCURTAIN COUNTY, 698 P.2D 930 (OKLA.1985). IN CONSTRUING A STATUTE, THE CARDINAL RULE IS TO ASCERTAIN THE INTENT OF THE LEGISLATURE BY CONSIDERING THE LANGUAGE OF THE STATUTE AS A WHOLE IN LIGHT OF ITS GENERAL PURPOSE. WOOD V. INDEPENDENT SCHOOL DIST. NO. 141 OF POTTAWATOMIE COUNTY, 661 P.2D 892 (OKLA. 1983).
STATUTES ADDRESSING THE SAME GENERAL SUBJECT "SHOULD BE CONSTRUED TOGETHER IN ORDER TO ARRIVE AT THE LEGISLATIVE INTENT IN ANY PARTICULAR SECTION." TWA V. MCKINLEY, 749 P.2D 108, 110 (OKLA.1988).
IN 1987 THE OKLAHOMA LEGISLATURE ENACTED THE OKLAHOMA AGRICULTURAL LINKED DEPOSIT PROGRAM, 2 O.S. 1761 THROUGH 2 O.S. 1769 (1991) ("AG PROGRAM"). IN GENERAL, THE AG PROGRAM AUTHORIZES THE STATE TREASURER TO PLACE CERTIFICATES OF DEPOSIT IN PRIVATE LENDING INSTITUTIONS AT INTEREST RATES BELOW THOSE THAT SHE COULD OTHERWISE OBTAIN FROM WILLING INSTITUTIONS IN ARMS' LENGTH TRANSACTIONS, OR SHE "MAY INVEST IN BONDS, NOTES, DEBENTURES, OR OTHER OBLIGATIONS OR SECURITIES ISSUED BY THE FEDERAL FARM CREDIT BANK . . . AT A RATE BELOW CURRENT MARKET RATES." 2 O.S. 1767 (B) (1991); SEE A.G. OPIN. NO. 88-052. IN RETURN, THE LENDING INSTITUTIONS WILL MAKE REDUCED RATE LOANS TO AGRICULTURAL BUSINESSES FOR THE PURPOSE OF FOSTERING ECONOMIC GROWTH IN THE STATE.
ORIGINALLY THE AG PROGRAM LIMITED THE AMOUNT OF STATE FUNDS THAT COULD BE INVESTED IN LINKED DEPOSIT LOANS WITHOUT DISTINGUISHING BETWEEN AGRICULTURAL AND SMALL BUSINESS LINKED DEPOSIT LOANS: "THE TOTAL AMOUNT OF LINKED DEPOSIT LOANS SHALL NOT EXCEED TWO PERCENT (2%) OF ALL STATE FUNDS." 1987 OKLA. SESS. LAWS, C. 182 , 6(C) (EMPHASIS ADDED). PRIOR TO 1987, NO OTHER LINKED DEPOSIT LOAN PROGRAMS, SUCH AS A SMALL BUSINESS LINKED DEPOSIT LOAN PROGRAM, EXISTED UNDER OKLAHOMA LAW.
IN 1988 THE OKLAHOMA LEGISLATURE PASSED THE OKLAHOMA SMALL BUSINESS LINKED DEPOSIT ACT, 62 O.S. 88 .1 THROUGH 62 O.S. 88 .9 ("ACT"). THE ACT PROVIDES FOR A LINKED DEPOSIT LOAN PROGRAM VERY SIMILAR TO THE AG PROGRAM. UNDER THE ACT, THE STATE TREASURER, UPON A RECOMMENDATION BY THE OKLAHOMA LINKED DEPOSIT REVIEW BOARD, MAY PLACE "CERTIFICATES OF DEPOSIT WITH THE ELIGIBLE LENDING INSTITUTION AT UP TO THREE PERCENT (3) BELOW THE COMPARABLE TREASURY BILL RATE, AS DETERMINED AND CALCULATED BY THE STATE TREASURER." 62 O.S. 88 .6(C) (1991). JUST AS WITH THE AG PROGRAM, IN RETURN THE LENDING INSTITUTION WILL PROVIDE SMALL BUSINESS LOANS AT AN INTEREST RATE "REDUCED BY AT LEAST THE SAME NUMBER OF PERCENTAGE POINTS THAT THE CERTIFICATE OF DEPOSIT WAS REDUCED UPON PLACEMENT." 62 O.S. 88 .6(D) (1991).
THE ACT ALSO PLACES A LIMIT ON THE AMOUNT OF STATE FUNDS THAT CAN BE INVESTED IN LINKED DEPOSIT LOANS: "THE STATE TREASURER MAY INVEST AN AMOUNT NOT TO EXCEED FIFTEEN PERCENT (15%) OF ALL MONIES AVAILABLE TO THE STATE TREASURER FOR INVESTMENT IN ANY LINKED DEPOSIT PROGRAM AUTHORIZED BY LAW." 62 O.S. 88 .8 (EMPHASIS ADDED). TO BRING THE 2 AG PROGRAM LIMIT UP TO CORRESPOND WITH THIS 15 LIMIT AND TO CLARIFY THE TOTAL PERCENTAGE THAT COULD BE INVESTED IN LINKED DEPOSIT LOANS, THE LEGISLATURE AMENDED THE AG PROGRAM STATUTE IN 1989 AS FOLLOWS:
"THE TOTAL AMOUNT OF AGRICULTURAL AND SMALL BUSINESS LINKED DEPOSIT LOANS SHALL NOT EXCEED TWO PERCENT (2%) FIFTEEN PERCENT (15%) OF ALL INVESTABLE STATE FUNDS UNDER THE CONTROL OF THE STATE TREASURER"
1989 OKLA. SESS. LAWS, C. 248 , 2(C)(L) (STRIKEOUTS AND UNDERLINING APPEAR IN ORIGINAL AND INDICATE DELETIONS AND ADDITIONS RESPECTIVELY), AMENDING 2 O.S. 1766 (C)(1) (1991).
IT COULD BE ARGUED THAT UNDER 62 O.S. 88 .8 THE USE OF THE WORD "ANY" MEANS THAT THE 15% LIMIT APPLIES TO EITHER AGRICULTURAL LINKED DEPOSIT LOANS OR SMALL BUSINESS LINKED DEPOSIT LOANS FOR A TOTAL CAP OF 30%. THE 1989 AMENDMENT CITED ABOVE, HOWEVER, DEMONSTRATES THAT THE LEGISLATURE INTENDED FOR THE TOTAL CAP TO BE 15% FOR THE MIX OF BOTH KINDS OF LOANS. THE LEGISLATURE ADDED THE LANGUAGE AGRICULTURAL AND SMALL BUSINESS" TO MORE SPECIFICALLY DESCRIBE THE KINDS OF LINKED DEPOSIT LOANS TO WHICH THE 15% CAP APPLIES AND TO REFLECT THE ADDITION OF THE SMALL BUSINESS LINKED DEPOSIT LOAN PROGRAM IN 1988.
ANY OTHER CONSTRUCTION WOULD NOT REFLECT THE INTENT OF THE LEGISLATURE AND WOULD NOT HARMONIZE THE LANGUAGE FOUND IN THE AG PROGRAM STATUTE AND THE ACT REGARDING A 15% CAP ON INVESTING STATE FUNDS IN LINKED DEPOSIT LOAN PROGRAMS. THE REASONING BEHIND THE 15% CAP FOR ALL AGRICULTURAL AND SMALL BUSINESS LINKED DEPOSIT LOANS IS SIMPLE. THE LEGISLATURE DID NOT WANT MORE THAN 15% OF STATE FUNDS INVESTED IN INSTRUMENTS EARNING LESS THAN MARKET RATES OF INTEREST.
IT IS, THEREFORE, THE OPINION OF THE UNDERSIGNED THAT:
THE TOTAL DOLLAR AMOUNT OF THE MIX OF OUTSTANDING AGRICULTURAL AND SMALL BUSINESS LINKED DEPOSIT LOANS ADMINISTERED BY THE STATE TREASURER MAY NOT EXCEED 15% OF ALL INVESTABLE STATE FUNDS UNDER THE CONTROL OF THE STATE TREASURER.
(BRETT ROBINSON)