INDEP. SCH. DIST. NO. I-20 OF MUSKOGEE COUNTY v. OKLA. STATE DEPT. OF EDUCATIONAnnotate this Case
INDEP. SCH. DIST. NO. I-20 OF MUSKOGEE COUNTY v. OKLA. STATE DEPT. OF EDUCATION
2003 OK 18
65 P.3d 612
Case Number: 95684
THE SUPREME COURT OF THE STATE OF OKLAHOMA
INDEPENDENT SCHOOL DISTRICT NO. I-20 OF MUSKOGEE COUNTY, Plaintiff/Appellee,
OKLAHOMA STATE DEPARTMENT OF EDUCATION, Defendant/Appellant.
CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION IV
Honorable Mike Norman, Trial Judge
¶0 The appellee, Independent School District No. I-20 of Muskogee County (school district) received an overpayment in state aid from the appellant, the State Department of Education (Department). The overpayment occurred because of a computer error. After the Department discovered the error, it requested an Attorney General opinion asking for a determination of whether it could recoup the overpayment pursuant to 70 O.S. 2001 §18-118 . The Attorney General determined that it could. Subsequently, the Department informed the district that it was going to recover the overpayment over a period of ten years by withholding a portion of future state aid. The school district filed an action for declaratory judgment in the district court of Muskogee County. The Department objected to the venue, arguing that Oklahoma County was the proper venue. The trial court entered judgment for the school district. The Department appealed and the Court of Civil Appeals affirmed in part and vacated in part. On certiorari we hold that: 1) pursuant to
CERTIORARI PREVIOUSLY GRANTED;
COURT OF CIVIL APPEALS OPINION VACATED;
TRIAL COURT REVERSED AND CAUSE REMANDED.
D.D. Hayes, Muskogee, Oklahoma, for Plaintiff/Appellee,
Kay Harley, General Counsel, Department of Education, Oklahoma City, Oklahoma,
Scott D. Boughton, Assistant Attorney General, Oklahoma City, Oklahoma, for Defendant/Appellant.
¶1 We granted certiorari to address three issues: 1) whether the State Department of Education may withhold future payments to a school district pursuant to
¶2 Title 70 O.S. 2001 §18-118 provides for the recoupment of state monies which have been "illegally apportioned to, or illegally disbursed or expended by," a school district.
¶3 Since 1988, the appellee, the Independent School District No. I-20 of Muskogee County (school district/district) has used computer software provided by National [65 P.3d 615]Computer Systems (NCS) to compute student statistical attendance reports which are used to determine the district's average daily membership.
¶4 Apparently unbeknownst to the district, the upgrade created a glitch which erroneously changed how the software calculated the district's annual statistical reports. On May 24, 1996, NCS sent the district another upgrade which could have corrected problems caused by the first upgrade. However, this upgrade was not installed on the system until after the district ran the annual statistical reports which were used by the Department to calculate the district's average membership. Consequently, the district's annual statistical report, which was produced for filing at the end of May in 1996, showed inflated student attendance numbers.
¶5 Because state aid is calculated, in part, by using the higher of the past two years' average daily membership figures of a school district,
¶6 Sometime in early 1998, the Department became aware that the school district had received a large increase in state aid. The Department asked the State Auditor and Inspector to audit the school district's attendance figures for the years involved. On August 11, 1998, the State Auditor released the audit which confirmed inflated attendance figures. The Department verified the State Auditor's figures and requested a formal opinion from the Attorney General asking for a determination of: 1) whether the Department was obligated to recover the excess money paid to the school district; and 2) whether the Okla. Const. art. 10, §26
¶7 On July 20, 1999, in response to the inquiry,
¶8 Subsequently, the school district requested a hearing pursuant to the Adminis-[65 P.3d 616]trative Procedures Act.
¶9 The Department sought to dismiss the action, arguing that venue was not proper in Muskogee County. On June 12, 2000, the trial court entered an order establishing venue in Muskogee County. A non-jury trial was held on November 17, 2000; and on December 1, 2000, the trial court entered judgment for the school district. The Department appealed, and on September 10, 2002, the Court of Civil Appeals affirmed in part and vacated in part. We granted certiorari on November 18, 2002.
¶10 PURSUANT TO
¶11 Title 70 O.S. 2001 §18-11821 requires the Board to audit the funds of public school [65 P.3d 617] districts, and it provides for joint and several liability of school district officers and employees who divert state money from the purpose for which it was apportioned. The statute also provides that if an audit discloses that state monies have been "illegally apportioned to, or illegally disbursed or expended by, a school district or any of its officers or employees," the Board must either demand that the money be returned or it must withhold the unreturned amount from subsequent allocations of state funds.
¶12 The school district argues that there is no evidence of any bad faith, dishonesty, wrongdoing, fraud or malice on the part of the school district's officers or employees, thus the Board has no authority under §18-118 to recoup state money which was disbursed as a result of a computer error. The Department asserts that: 1) the overpayment was illegally apportioned because the district received funding for which it did not qualify under the law; and 2) it is under an affirmative duty to recover state monies which have been illegally apportioned regardless of how the overpayment occurred. It also insists that allowing the district to keep the erroneous apportionment would be tantamount to the state making a gift to the school district in violation of art. 10, §15 of the Okla. Const.22
¶13 In determining whether a statute applies to a given set of facts, we focus on legislative intent
¶14 The purposes of the state aid program include providing the best possible educational opportunities to every child in Oklahoma and creating a beneficial use of public funds expended for education.
¶15 The State Department of Education, through the State Board of Education, is responsible for administration of the public school system in the state.
¶16 Section 18-116 provides penalties for knowing and wilful violations of the state aid program of the Code.
¶17 The Code sets forth calculations for determining eligibility, apportionment and disbursement of state aid which rely on accurate attendance figures.
¶18 THE CONSTITUTIONAL DEBT LIMITATIONS OF THE OKLA. CONST. ART 10, §26 DO NOT PRECLUDE THE DEPARTMENT'S RECOVERY OF THE OVERPAYMENT.
¶19 The school district argues alternatively that if §18-118 applies to the facts of this cause,
¶20 Article 10, §26 of the Oklahoma Constitution prohibits school districts from becoming indebted, in any manner, or for any purpose, by an amount exceeding the income and revenue provided for a fiscal year [65 P.3d 620] without the assent of three fifths of the voters.
¶21 Recently, in Southern Correction Systems, Inc. v. Union Public Schools,
¶22 While the school district may be obligated to the Department to repay the funds, the recoupment provisions of §18-118 do not constitute any kind of deficit financing for the purposes of the constitutional debt limitations. Recouping the money that the Department seeks does not require a tax levy by the district nor does it come from the district's tax collections. Further, recovery of the funds does not in any way amount to the taking away of anything ever legally belonging to the school district ----- the district was never actually entitled to receive the funds. Accordingly, the constitutional debt limitations of the Okla. Const. art. 10, §26 are inapplicable to the Department's recovery of the overpayment.
¶23 VENUE IS PROPER IN THE COUNTY WHERE THE SCHOOL DISTRICT IS LOCATED.
¶24 The Department insists that the provisions of the Administrative Procedures Act
¶25 The school district contends that the Act applies because the action of the Department in adopting the Attorney General opinion constitutes an adoption of an administrative rule. Accordingly, it insists that venue is proper in the district court of Muskogee [65 P.3d 621]County ----- where the school district is located. It also insists that Allen v. State ex rel. Bd. of Trustees of Oklahoma Uniform Retirement System for Justices and Judges,
¶26 Absent a specific statute to the contrary,
¶27 In Grand River Dam Authority v. State, supra, we addressed the Administrative Procedures Act's application to Attorney General opinions.
¶28 Six years later, we issued Allen v. State ex rel. Bd. of Trustees of Oklahoma Uniform Retirement System for Justices and Judges, supra, which involved a retired judge's appeal from a decision of the Board of Trustees for the State Public Employees Retirement System that denied his request for credit for active military service. The Court noted that an agency's obedience to the legal advice of the Attorney General ---- whether considered binding or merely advisory ---- effected adoption of the Attorney General's opinion as a rule. We recognized that after an agency's adoption of an Attorney General's advice as a basis for its standard of legal conduct, the procedural remedy of a declaratory-relief suit afforded by the Administrative Procedures Act,
¶29 Although Allen did not involve a challenge to venue, it's analysis is instructive here. This is not a suit in which the Attorney General's opinion is directly challenged by an agency, like Grand River. Rather, the record documents that the Department relied upon the advice of the Attorney General to support its decision to recoup the money it overpaid to the school district. The minutes of the January 20, 2000, meeting of the State Board of Education reflect that the Attorney General's opinion was discussed as a basis for seeking recoupment. Additionally, the letter sent by the Department to the school district which denied the school district a hearing on the matter indicates that the Department reached its decision because it was following the Attorney General's opinion.
¶30 Under the rationale of Allen, the Department's adoption of the Attorney General's opinion constituted a de facto rule which is subject to challenge under the declaratory judgment provision,
¶31 The state aid program seeks to assure equal educational opportunities among the school districts by apportioning state monies objectively.
CERTIORARI PREVIOUSLY GRANTED;
COURT OF CIVIL APPEALS OPINION VACATED;
TRIAL COURT REVERSED AND CAUSE REMANDED.
WATT, C.J., OPALA, V.C.J., HODGES, LAVENDER, HARGRAVE, KAUGER, BOUDREAU, WINCHESTER, JJ., concur.
SUMMERS, J., not participating. [65 P.3d 624]
1Title 70 O.S. 2001 §18-118 provides:
"A. The State Board of Education shall appoint auditors who shall audit the funds of the public school districts and the use made of the monies thereof, and shall make such other audits as may be required by the State Board of Education.
B. School districts and officers and employees thereof who divert any monies received by a district from the purpose for which the monies were apportioned to the district shall be jointly and severally liable for any such diversion.
C. If audits disclose that state monies have been illegally apportioned to, or illegally disbursed or expended by, a school district or any of its officers or employees, the State Board of Education shall make demand that said monies be returned to the State Treasurer by such school district. If said monies are not returned, the State Board shall withhold the unreturned amount from subsequent allocations of state funds otherwise due the district. The State Board of Education shall cause suit to be instituted to recover for the state any monies illegally disbursed or expended, if not otherwise recovered as provided herein."
Because this statute has not been amended since 1990, references are to the current version.
2The Okla. Const. art. 10, §26 provides in pertinent part:
"(a) Except as herein otherwise provided, no county, city, town, township, school district, or other political corporation, or subdivision of the state, shall be allowed to become indebted, in any manner, or for any purpose, to an amount exceeding, in any year, the income and revenue provided for such year without the assent of three-fifths of the voters thereof, voting at an election, to be held for that purpose, nor, in cases requiring such assent, shall any indebtedness be allowed to be incurred to an amount, including existing indebtedness, in the aggregate exceeding five percent (5%) of the valuation of the taxable property therein, to be ascertained from the last assessment for state and county purposes previous to the incurring of such indebtedness. . . ."
4We note that the appellant designated for inclusion in the record the defendant's motion for summary judgment and brief in support which was filed in the trial court on October 25, 2000. The document was included in the record on appeal; however, statements in the document refer to attached exhibits. Similar references are made in the appellant's brief in chief. Apparently, the exhibits were not attached to the document because they were not included in the record on appeal. Rule 1.34, 12 O.S. 2001, Ch. 15, App. 1, Oklahoma Supreme Court Rules provides in pertinent part:
". . .(g) Extension of Date for Completion of Record. The appealing party, whether an appellant, counter or cross-appellant, bears responsibility to ensure timely preparation of an adequate record to review the issues urged by that party. The appealing party must timely order and pay for transcripts, designate record, monitor proper completion in the trial court. . . "
Although we were able to glean the relevant facts from other parts of the record and the appellant's stated facts which would have been supported by the exhibits were not facts which were dispositive of the issues presented, it is the appealing party's responsibility to ensure that the record contains the proper documentation that they intended to be included in the record.
5Title 70 O.S. 2001 §18-118, see note 1, supra.
6The Okla. Const. art 13, §1a provides in pertinent part:
"The Legislature shall, by appropriate legislation raise and appropriate funds for the annual support of the common schools of the State to the extent of forty-two ($42.00) dollars per capita based on total state-wide enrollment for the preceding school year. Such moneys shall be allocated to the various school districts in the manner and by a distributing agency to be designated by the Legislature . . ."
Title 70 O.S. 2001 §18-103 provides in pertinent part:
"There shall be apportioned and disbursed annually by the State Board of Education, from appropriations made by the Legislature for this purpose and from funds derived from other sources provided by law for this purpose, to the several school districts of the state, such sums of money as each school district may be qualified to receive under the provisions of this article. . . ."
Because the statute has remained unaltered since its enactment, references are to the current version. See also, 70 O.S. 2001 §18-101 et seq.
7Title 70 O.S. Supp. 1996 §18-201 provides in pertinent part:
". . . B. The weighted calculations provided for in subsection A of this section shall be determined as follows:
1. The weighted pupil grade level calculation shall be determined by taking the highest average daily membership of the preceding two (2) years of a school district and assigning weights to the pupils according to grate attended. . ."
This statute was repealed in 1998. See also, 70 O.S. Supp. 1996 §§ 18-200-200.1. Title 70 O.S. Supp. 2002 §18-200.1 provides in pertinent part:
"A. Beginning with the 1997-98 school year, and each school year thereafter, each school district shall have its initial allocation of State Aid calculated based on the state dedicated revenues actually collected during the preceding fiscal year, the adjusted assessed valuation of the preceding year and the highest weighted average daily membership for the school district of the two (2) preceding years. The State Department of Education shall notify each school district by July 15 of the districts initial allocation level. Each school district shall submit the following data based on the first nine (9) weeks, to be used in the calculation of the average daily membership of the school district:
1. Student enrollment by grade level;
2. Pupil category counts; and
3. Transportation supplement data. . . ."
See also, 70 O.S. 2001 §18-201.1.
Title 70 O.S. 2001 §18-107 provides in pertinent part:
". . . 2. 'Average Daily Membership' (ADM) means the average number of pupils present in a school district during a school year. Average Daily Membership shall be calculated by dividing the sum of the pupil's total days present and total days absent by the number of days taught. . . ."
This statute was amended in 1998, however references are to the current version because the pertinent portions of the statute remain unchanged.
8Title 70 O.S. 2001 §5-128 provides:
"Boards of education of all school districts are hereby required to make annual statistical and financial reports to the State Board of Education. The statistical report shall be made as of June 30. Each of such reports shall be filed with the State Board of Education as soon as information is available following the effective date of such reports."
Because the statute has remained unaltered since 1993, references are to the current version.
970 O.S. Supp. 2002 §18-200.1 see note 7, supra.
10The Okla. Const. art. 10, §26, see note 2, supra.
11The Department's inquiry provided:
"1. Does the State Department of Education have an obligation to recover a prior year overpayment of state aid from a school district, once it is verified that an overpayment occurred?
2. Do the limits in Article X, §26 of the Oklahoma Constitution prevent the recovery of a previous overpayment by the State to a school district?"
12Title 70 O.S. 2001 §18-118, see note 1, supra.
13The Okla. Const. art. 10, §26, see note 2, supra.
14The Oklahoma Administrative Procedures Act, 75 O.S. 2001 §§250 et seq.
15Title 74 O.S. 2001 §18b provides in pertinent part:
"A. The duties of the Attorney General as the chief law
officer of the state shall be:
. . .
5. To give an opinion in writing upon all questions of law submitted to the Attorney General by the Legislature or either branch thereof, or by any state officer, board, commission or department. . ."
16Title 75 O.S. 2001 §306 provides in pertinent part:
"A. The validity or applicability of a rule may be determined in an action for declaratory judgment in the district court of the county of the residence of the person seeking relief or, at the option of such person, in the county wherein the rule is sought to be applied, if it is alleged the rule, or its threatened application, interferes with or impairs or threatens to interfere with or impair, the legal rights or privileges of the plaintiff. . . ."
Because the statute has remained unaltered since 1987, references are to the current version.
17Title 75 O.S. 2001 §307 provides:
"Each agency shall provide by rule for the filing and prompt disposition of petitions for declaratory rulings as to the applicability of any rule or order of the agency. A declaratory ruling, or refusal to issue such ruling, shall be subject to a judicial review in the manner provided for review of decisions in individual proceedings as provided in Sections 317 through 323 of this title."
Because the statute remains unaltered since 1987, references are to its current version.
18Title 75 O.S. 2001 §318 provides in pertinent part:
"A.1. Any party aggrieved by a final agency order in an
individual proceeding is entitled to certain, speedy, adequate and complete
judicial review thereof pursuant to the provisions of this section and Sections
319, 320, 321, 322 and 323 of this title.
. . .
B. 1. The judicial review prescribed by this section for final agency orders, as to agencies whose final agency orders are made subject to review, under constitutional or statutory provisions, by appellate proceedings in the Supreme Court of Oklahoma. . .
2. In all other instances, proceedings for review shall be instituted by filing a petition, in the district court of the county in which the party seeking review resides or at the option of such party where the property interest affected is situated, within thirty (30) days after the appellant is notified of the final agency order as provided in Section 312 of this title. . . ."
Because the statute has remained unaltered since 1992, references are to its current version.
19Title 70 O.S. 2001 §18-118, see note 1, supra.
20The Okla. Const. art. 10, §26, see note 2, supra.
21Title 70 O.S. 2001 §18-118, see note 1, supra.
22The Okla. Const. art. 10, §15 provides:
"The credit of the State shall not be given, pledged, or loaned to any individual, company, corporation, or association, municipality, or political subdivision of the State; nor shall the State become an owner or stockholder in, nor make donation by gift, subscription to stock, by tax, or otherwise, to any company, association, or corporation."
28Title 70 O.S. 2001 §18-101 provides in pertinent part:
"The Legislature hereby declares that this act is passed for the general improvement of the public schools in the State of Oklahoma; to provide the best possible education opportunities for every child in Oklahoma; and to have a more beneficial use of public funds expended for education; and this act shall be liberally construed to attain these goals within the purview of the following principles and policies. . .
7. The system of public school support should make
provisions for the apportionment of state funds to local school districts on a
strictly objective basis that can be computed as well by the local district as
by the state.
. . .
9. . . . State support should, to assure equal educational opportunity provide for as large a measure of equalization as possible among districts. . . ."
Because §18-101 has remained unaltered since its enactment, references are to the current version.
Title 70 O.S. 2001§1-102 provides:
"The purpose of the Oklahoma School Code is to provide for a state system of public school education and for the establishment, organization, operation and support of such state system."
29Title 70 O.S. 2001 §18-101 see note 28, supra.
30Title 70 O.S. 2001 §18-101, see note 28, supra. See also, 70 O.S. 2001 §1-103 which provides:
"If any section or part of the Oklahoma School Code is found to be ambiguous or otherwise subject to more than one interpretation, such section shall be liberally construed to the extent that the general purpose of the entire Code and of public education may be advanced."
31Title 70 O.S. 2001 §1-105 provides in pertinent part:
"A. The State Department of Education is that department of the state government in which the agencies created or authorized by the Constitution and Legislature are placed and charged with the responsibility of determining the policies and directing the administration and supervision of the public school system of the state. These agencies are the State Board of Education . . .
B. The State Board of Education is that agency in the State Department of Education which shall be the governing board of said Department and the public school system of the state. . . ."
3270 O.S. 2001 §18-103 see note 6, supra.
33Title 70 O.S. 2001 §18-104 provides in pertinent part:
". . . B. If the State Board of Education should ascertain that any of the factors on which the apportionment or allocation of State Aid to any school district has so changed as to disqualify such district or to reduce its State Aid, then the State Board of Education shall forthwith notify the district . . . as to the amount of reduction in the allocation of State Aid, and the board of education shall immediately request the county clerk to adjust the items of appropriation in accordance with such reduction as to effect a total reduction in the appropriation by the amount which the State aid allocation was reduced; and if there has been an overpayment the same shall be returned to the State Treasurer and credited to a refund account which shall be available for further payment of State Aid. Whenever it becomes necessary for a school district to refund any overpayment of monies previously received, the school district shall issue such warrant against a properly approved encumbrance in the manner provide by law. Such claim or encumbrance shall be coded as a refund of prior revenue and paid from the current expenses appropriation of the general fund or such other fund or account from which such refund may properly be paid by the school district."
Because this statute has remained unaltered since1993, references are its current version.
34Title 70 O.S. 2001 §18-116, see note 35, infra; Title 70 O.S. 2001 §18-117, see note 36, infra; Title 70 O.S. 2001 §18-118, see note 1, supra.
35Title 70 O.S. 2001 §18-116 provides in pertinent part:
"A. Any school district which willfully operates school
buses contrary to the rules and regulation prescribed by the State Board of
Education shall forfeit its State Aid for the time of noncompliance. All State
Aid funds shall be withheld from any school district that does not comply with
the standards of the State Board of Education for accrediting.
. . .
F. The State Board of Education shall revoke the certificate of any teacher, principal, or superintendent who knowingly or willfully violates any of the provisions of this article.
G. Any official involved in the execution of this article who shall fail or refuse to carry out any of the provisions thereof shall be liable on his official bond, if any, for the monetary damages resulting from said failure to act, and in addition thereto shall be subject to removal from office for neglect of duty under the provisions of law relating to the removal of public officials.
H. Any person or firm who shall knowingly or willfully violate any of the provisions of this article shall be guilty of a misdemeanor. Any public official or public employee violating any of the provisions of this article shall be subject to the penalties for a misdemeanor and in addition thereto shall forfeit his position or office. Any officer or employee of the State Board of Education who knowingly or willfully apportions or disburses any monies appropriated by this article contrary to the provisions of this article shall be subject to the penalties for a misdemeanor and in addition shall forfeit his office or position. . . ."
This statute was amended in 2000; however, the changes renumbered the pertinent portions but the language remains unaltered. Consequently, references are to its current version.
36Title 70 O.S. 2001 §18-117 provides:
" All apportionments of State Aid to school districts shall be made by the State Board of Education through its Director of Finance, who shall not knowingly make any apportionment or disbursements of State Aid funds which is not authorized by law. Any State Aid funds illegally disbursed by the Director of Finance shall be returned to the State Treasurer by the school district receiving such funds, or legal action shall be instituted in the name of the state against such school district or on the bond of the Director of Finance."
Because the statute has remained unaltered since 1980, references are to its current version.
37Title 70 O.S. 2001 §18-118, see note 1, supra.
39See, 70 O.S. Supp. 2002 §18-200.1, note 7, supra.
40 The school district relies on several cases in which courts have determined that statutes which refer to "illegal" acts mean only acts without the authority of law, rather than acts which are merely erroneous. However, these cases are distinguishable on their facts. They involve the interpretation of tax statutes and whether the review of tax assessments which were challenged as either erroneous, inequitable or excessive could be brought before the courts in the first instance. Protest of Downing, 1933 OK 387, ¶__, 23 P.2d 173; Syracuse Trust Co. v. Board of Sup'rs of Oneida County, 258 A.D.17, 15 N.Y.S.2d 920 (1939); Christofferson v. Chouteau County, 105 Mont. 577, 74 P.2d 427 (1937); Jackson County v. Thornton, 44 Fla. 610, 33 So. 291 (1902); Schieffelin v. Craig, 170 N.Y.S. 603, 183 A.D. 515 (1918); Ford v. McGregor, 20 Nev. 446, 23 P. 508 (1890).
41Because we have determined that 70 O.S. 2001 §18-118, see note 1, supra, applies to the present cause, we need not address the school district's argument regarding recovery of an overpayment in the absence of an applicable statute.
42The Okla. Const. art. 10, §26, see note 2, supra.
43The Okla. Const. art. 10, §26 , see note 2, supra. Contracts, executed or executory which seek to bind a school district's revenues of a succeeding fiscal year are void. Independent School District No. 1 v. Howard, 1959 OK 17, ¶7, 336 P.2d 1097; Consolidated School Dist. No. 6 v. Panther Oil & Grease Mfg. Co., 1946 OK 137, ¶4, 168 P.2d 613; Board of Education of School Dist. No. 47 ½ v. Jacobs, 1928 OK 677, ¶7, 272 P. 360.
44City of Del City v. FOP, Lodge No. 114, 1993 OK 169, ¶5, 869 P.2d 309; Wyatt-Doyle & Butler Engineers, Inc. v. City of Eufaula, 2000 OK 74, ¶6, 13 P.3d 474; Independent School District No. 1 v. Howard, see note 43, supra.
45Wyatt-Doyle & Butler Engineers, Inc. v. City of Eufaula, see note 44, supra; Protest of Carter Oil Co., 1931 OK 15, ¶16, 296 P. 485; St. Louis-San Francisco Ry. Co. v. Andrews, 1929 OK 250, ¶0, 278 P. 617.
46Rehearing time for Southern Correction Systems, Inc. v. Union Public Schools, 2002 OK 93, ¶22, ___ P.3d __ has expired and an order on appeal related attorney fees has issued. If no rehearing on the attorney fee order is filed, mandate is expected to issue after March 3, 2003.
47Clay v. Independent School Dist. No. 1, 1997 OK 13, ¶11, 935 P.2d 294; City of Del City v. FOP, Lodge No. 114, see note 44, supra.
48Title 75 O.S. 2001 §306, see note 16, supra; 75 O.S. 2001 §307, see note 17, supra; 75 O.S. 2001 §318, see note 18, supra.
49Title 12 O.S. 2001 §133 provides in pertinent part:
"Actions for the following causes must be brought in the
county where the cause or some part thereof arose:
. . . An action against a public officer for an act done by him in virtue, or under color, of his office, or for neglect of his official duties. . . ."
51Lowrance v. Patton, 1985 OK 95, ¶23, 710 P.2d 108.
52State ex rel. Dept. of Mental Health and Substance Abuse Services v. Freedom Ranch, Inc., 1998 OK 116, ¶4, 970 P.2d 181; Lowrance v. Patton, see note 51 , supra; Grand River Dam Authority v. State, 1982 OK 60, ¶¶5-6, 645 P.2d 1011; Oklahoma Ordnance Works Authority v. District Court of Wagoner County, 1980 OK 100, ¶12, 613 P.2d 746; Hillcrest Medical Center v. Lee, 1978 OK 23, ¶¶ 15-16, 575 P.2d 971; Office of Governor-Dept. of Indus. Development v. Dalton, 1977 OK 34, ¶¶ 10-11, 560 P.2d 971.
53See, Grand River Dam Authority v. State, note 52, at ¶3, supra; 12 O.S. 2001 §1651 et seq. 12 O.S. Supp. 2002 §1653 provides in pertinent part:
"A. When a declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding.
B. The venue of said action shall be established by existing statutes . . ."
Since its enactment in 1961, this statute was amended only twice, both times in 2002. However, references are to the current version because the pertinent portions remain unaltered. See also, Hillcrest Medical Center v. Lee, see note 52, supra; State ex rel. State Bd. of Ed. v. District Court of Bryan County, 1955 OK 346, ¶9, 290 P.2d 413.
54Although we have reached numerous other decisions in which 12 O.S. 2001 §133 applied to acts by public officials, none of these involved the application of the Administrative Procedures Act, 75 O.S. 2001 §§250 et seq. See, e.g., State ex rel. Dept. of Mental Health and Substance Abuse Services v. Freedom Ranch, Inc., note 52, supra [Breach of contract action.]; Young v. Walton, 1991 OK 20, ¶7, 807 P.2d 248 [Breach of contract action]; Lowrance v. Patton, see note 51, supra [Action to recover funds improperly paid.]; Pribram v. Fouts, 1987 OK 29, ¶6, 736 P.2d 513 [Negligence action.]; Oklahoma Ordnance Works Authority v. District Court of Wagoner County, see note 52, supra [Negligence action.]; Hillcrest Medical Center v. Lee, see note 52, supra [Declaratory judgment action to collect on open account.]; Office of Governor-Dept. of Indus. Development v. Dalton, see note 52, supra [Breach of contract action.]; State ex. rel. Director of Oklahoma Alcoholic Beverage Control Bd. v. Smith, 1974 OK 11, ¶5, 519 P.2d 477 [Action to enjoin enforcement of open saloon laws.]; State ex rel. Oklahoma Tax Commission v. District Court of Nowata County, 1974 OK 17, ¶3, 519 P.2d 513 [Recovery of tax money.]; State ex rel. Dept. of Corrections v. Brock, 1973 OK 95, ¶6, 513 P.2d 1293 [Nuisance.]; Starns v. District Court of Oklahoma County, 1962 OK 254, ¶7, 376 P.2d 592 [Assault.]; State ex. rel. State Dry Cleaners' Bd. v. District Court of Nowata County, 1959 OK 120, ¶11,340 P.2d 939 [Constitutionality of statutes.]; State ex rel. State Bd. of Ed. v. District Court of Bryan County, see note 53, supra [Declaratory judgment action to determine constitutionality of statute.].
55Title 75 O.S. 2001 §250.3 provides in pertinent part:
". . . 15. 'Rule' means any agency statement or group of related statements of general applicability and future effect that implements, interprets or prescribes law or policy, or describes the procedure or practice requirements of the agency . . ."
56Title 75 O.S. 2001 §306, see note 16, supra.
57See also, Dewey v. State ex rel. Oklahoma Firefighters Pension and Retirement System, 2001 OK 40, ¶15, 28 P.3d 539.
58Title 75 O.S. 2001 §306, see note 16, supra.
59The Act also provides for judicial review of final orders of agencies subject to its provisions. 75 O.S. 2001 §318, see note 18, supra. Even if the Department's decision to recoup the overpayments or the decision to refuse an individual hearing were construed as a final order, judicial review of that decision would be alternatively available under 75 O.S. 2001 §318, see note 18, supra. Section 318 also provides that venue is proper in the county where the party seeking relief resides. For a discussion of the procedures and alternative for judicial review under the act see, Ricks Exploration Co. v. Oklahoma Water Resources Bd., 1984 OK 73, 695 P.2d 498; Conoco, Inc. v. State Dept. of Health, 1982 OK 94, 651 P.2d 125; and Associated Builders and Contractors of Oklahoma v. State ex rel. Oklahoma Dept. of Labor, 1981 OK 50, 628 P.2d 1156.
60Title 75 O.S. 2001 §306, see note 16, supra
61Title 70 O.S. 2001 §18-101, see note 28, supra.
62Title 70 O.S. 2001 §18-104, see note 33, supra; Title 70 O.S. 2001 §18-116, see note 35, supra; Title 70 O.S. 2001 §18-117, see note 36, supra; Title 70 O.S. 2001 §18-118, see note 1, supra.
64The Okla. Const. art. 10, §26, see note 2, supra.