text:
1. There can be little doubt that the long-awaited judgment of the Court of Justice in the Achmea case delivered on 6 March (Case C-284/16, Slovak Republik v. Achmea BV) gives the last word on the (even longer) debated issue relating to the (in)compatibility of intra-EU investment bilateral investment treaties (BITs) with the EU legal order. In particular, in sharp contrast with the Opinion of AG Wathelet, the Court does not hesitate to state that an arbitration tribunal established under a BIT between two Member States «call[s] into question not only the principle of mutual trust between Member States but also the preservation of the particular nature of the law established by the Treaties, ensured by the preliminary ruling procedure provided for in article 267 TFEU, and is not therefore compatible with the principle of sincere cooperation» (para. 58). The judgment is certainly to be welcome, it will have important consequences on the future of the intra-EU investment agenda, and may have some impact also on the extra-EU investment agenda (see infra, § 5). It finally clarifies a series of important legal questions which had often been raised in the last decade before investment arbitration tribunals seized under relevant intra-EU BITs or under the Energy Charter Treaty, that probably lacked an adequate EU law perspective (see for example, Charanne B.V. and Construction Investments S.A.R.L. v. Spain; Eastern Sugar B.V. v. Czech Republic; Oostergetel and Teodora Laurentius v. Slovak Republic; Saluka Investment Czech Republic; ADC Affiliate Ltd vs. Republic of Hungary; AES Summit Generation Ltd and AES-Tisza Erömü Kft v Republic of Hungary; Electrabel S.A. (Belgium) v. Republic of Hungary).
2. The facts of the case are probably known, since the dispute between Achmea BV (former Eureko), based in the Netherlands, and the Slovak Republic dates back to 2008; in this year the Dutch investor, operating in the insurance sector, started arbitration proceedings against the Slovak Republic pursuant to Art. 8 of the BIT between the defendant State and the Netherlands. Eureko claimed damages for alleged indirect expropriation arising from a change in the Slovakian legislation, which had repealed the previously existing regime liberalizing the insurance market. In those arbitration proceedings the Slovak Republic raised the so called “intra-EU jurisdictional objection”, arguing that, as a result of its accession to the European Union, recourse to an arbitral tribunal provided for in Article 8(2) of the BIT was incompatible with EU law. By an interlocutory award dated 26 October 2010 (Eureko v. Slovak Republic), the arbitral tribunal dismissed the objection. In the first place, it held that arbitration clauses in BITs are different from inter-state dispute settlement mechanisms, such as those challenged under Art. 344 TFEU in Mox Plant (Case C-459/03, Commission v. Ireland); thus, according to the Tribunal, no provision existed under European Union law preventing the resort to intra-EU investment arbitration. In the second place, after excluding that Articles 30 and 59 of the Vienna Convention on the Law of Treaties (VCLT) may invalidate the BIT in question, in particular as to its dispute settlement mechanism, because of the entry into force of the 2003 treaty of accession to the EU of Slovakia (and other nine new Member States), the Tribunal denied also that the CJEU enjoys any ‘monopoly’ in the interpretation of EU law, since this law is daily applied by national courts and arbitrators. Such an interlocutory award was challenged before German courts, albeit unsuccessfully. The final award was delivered on 7 December 2012 and ordered the Slovak Republic to pay Achmea damages for breach of BIT obligations. Thereafter, the Slovak Republic brought an action to have the final award reversed before the regional court of Frankfurt am Main, i.e. the seat of arbitration. It maintained that both the final award granting damages to the claimants and the BIT itself were contrary to public policy, in particular as they infringed several provision of EU law: those on free movement of capital (Articles 267 and 344 TFEU), and the principle of non-discrimination set forth in Article 18 TFEU. This court dismissed the action and the Slovak Republic appealed its judgment before the German Bundesgerichtshof. As a judge of last instance, it referred a preliminary ruling to the CJEU on the abovementioned legal issues. Indeed, the Bundesgerichtshof appeared not to be persuaded by the arguments raised by the Slovak Republic (CJEU, Achmea, paras. 14-22). Nevertheless, it recognized the importance of the matter, due consideration being also taken to the considerable number of intra-EU BITs, and decided to stay its proceedings and refer the question to the CJEU.
3. The judgment tackles all the main points of law that are instrumental to assess the overall compatibility of intra-EU BITs with the specific EU legal characteristics, such as allocation of powers, primacy, direct effects, general principles of EU law and principle of mutual trust, as well as the principle of autonomy of the EU legal system. The CJEU is adamant in restating that the functioning and safeguard of all of the above is ensured and preserved by national courts in cooperation with the CJEU. In this regard, it refers in particular to Articles 4(3) and 19 TEU, in conjunction with Articles 344 and 267 TFEU, which shape the EU constitutional order (see g. Case C‑64/16, Associação Sindical dos Juízes Portugueses, para. 33; Opinion 2/13 on the accession of the EU to the ECHR, paras. 174 ff.; Opinion 1/09 on the agreement creating a unified patent litigation system). The Court then addresses whether (i) Art. 344 TFEU applies in case of intra-EU investment tribunals; (ii) investments tribunals can be considered part of the judicial system of the Union and, failing this; (iii) the ex post control of the award by national courts is an adequate tool to ensure consistency of an arbitral award with EU law. As to the issue sub (i), it should be recalled that Art. 344 TFEU binds Member States not to submit «a dispute concerning the interpretation or application of the Treaties» to any method of settlement other than those provided by the Treaties. In its opinion (see para. 138 ff.), AG Wathelet casts in doubt that Art. 344 TFEU would apply in case of disputes involving investors, based on the assumption that such a provision would only apply in case of disputes among Member States or between Member States and the EU. However, the Court does not follow the AG’s suggestion, and takes a more convincing and rigorous approach aimed at establishing whether investment tribunals are liable to interpret and apply EU law to the dispute they are called to resolve. In this regard, it was held that EU law is indeed part of the «law in force of the contracting party concerned» as well as of «other relevant agreements between contracting parties». Therefore, it constitutes one of the sources of law expressly recalled by Article 8 of the concerned BIT for the settlement of investment disputes. Thus, no doubt that tribunals established under such intra-EU BITs can have an impact on the application of Art. 344 TFEU.
Subsequently, it was necessary to ascertain if, due to the way they are structured, investment tribunals can be classified as “court or tribunal of the Member State” within the meaning of Art. 267 TFEU. Should this be the case, they would simply integrate the EU judicial system, having the capacity to refer preliminary rulings to the CJEU. Both AG Wathelet and some authors (see e.g. Basedow) advocated that referrals for preliminary rulings to the CJEU by investment tribunals established under BITs concluded by Member States should be admitted by the CJEU in view of their different nature vis-à-vis commercial arbitral tribunals. This argument is based, inter alia, on their legal origin (being established by an international treaty), their permanent (though optional) nature and the compulsory jurisdiction they ensure. However, the Court does not uphold this view, since investment tribunals lack any real connection with the judicial systems of the Member States (para. 48; see also Case C‑196/09, Miles and Others, para. 41). In fact, there is little doubt that the raison d’être of these arbitral tribunals is to allow private investors to escape domestic courts and national judicial systems.
Failing the direct integration of these tribunals within the EU judicial system, the Court addresses the issue of the ex post control on their award by national courts. In accordance with Art. 19 TEU, such review by national courts would in principle ensure that a question of EU law addressed by the Tribunal could be submitted to the CJEU and therefore brought within the EU system of judicial protection. Precedents in this regard relate to commercial arbitration tribunals. In such cases, the Court has generally considered acceptable the limited grounds for setting aside awards set forth by national law, provided that effet utile of mandatory EU law is ensured (Case C-168/05, Mostaza Claro, para. 35; Case C-126/97, Eco Swiss, para. 37). Yet, in the present case, the Court distinguishes investment tribunals from commercial tribunals, based on the assumption that «while the latter originate in the freely expressed wishes of the parties, the former derive from a treaty by which Member States agree to remove from the jurisdiction of their own courts, and hence from the system of judicial remedies which the second subparagraph of Art. 19(1) TEU requires them to establish in the fields covered by EU law… disputes which may concern the application or interpretation of EU law» (para. 55). The reasoning appears fully consistent with the already mentioned obligation Member States have under Art. 344 TFEU, in so far as investment tribunals are considered capable to apply EU law. At the same time, we have already seen that, according to the Court, the nature of such tribunals is relevant for excluding them from the EU judicial system. However, the very narrow possibility given to national courts to review investment arbitrations, under the ICSID regime, may have persuaded the Court that the risk of running afoul of Art. 344 TFEU obligation and of the autonomy of the EU legal order (i.e. compliance by the same Member State with obligations stemming from Arts. 19 TEU and 267 TFEU) was too high to treat investment arbitral tribunals like commercial ones. Sure, not all investment disputes can be decided under the ICSID settlement regime; and yet, on the one hand all but one Member State (Poland) are parties to ICSID; on the other hand, it would be certainly complicated to draw a distinction on the kind of settlement dispute used within an intra-EU BIT – with a view to excluding only ICSID-governed ISDS – as a precondition to consider it admissible or not under EU law.
4. The arguments set forth by the Court with regard to the incompatibility of intra-EU BITs and ISDS with the special characteristics of EU law, including in particular «the principle of mutual trust among the Member States… and … the principle of sincere cooperation», are convincing and welcome. As we have already argued elsewhere (Munari, Cellerino, p. 125), a system of investment dispute resolution established at the inter-state level, and shaped to a great extent as an exclusive and preferential alternative to the EU judicial system under Arts. 19 TEU and 267 TFEU, cannot and should not be maintained within the internal market, because it jeopardizes the uniform and consistent application of internal market rules applying to foreign direct investments (see also Micula et al. v. Commission). This said, there is no doubt that, at last, the Achmea judgment outlaws intra-EU BITs from the EU legal order. This result was reached with the most typical tool available to the Court, i.e. a request for preliminary ruling on a domestic case on the interpretation and application of EU law concerning the judicial review of an investment arbitration award. Anyway, it is long overdue from the substantive legal viewpoint. In our view (and, fortunately, in the Court’s view), upon the adhesion to the Union, and the combined enjoyment of the fundamental freedoms available to EU firms, it is simply inconceivable to have “special” regimes for them depending on whether they are located or not in the host State of their investment. Especially if one considers that, in the first place, EU fundamental freedoms guarantee a virtually unlimited investments regime within the EU (and even beyond, as we shall point out later); and secondly, that freedom of establishment easily allows a domestic investor to establish in another Member State, obtain the status of ‘foreign’ investor and use such a status to seek (additional and undue) protection under an existing intra-EU BIT. Besides, this is exactly what may have occurred in the celebrated Micula case, where one could seriously cast doubts on the investor’s Rumanian nationality, at least with regard to its ultimate beneficial owners. In this respect, such ISDS raises problems also vis-à-vis the principle of non-discrimination on grounds of nationality set forth in Art. 18 TFEU.
It is our firm belief that fundamental freedoms grant any EU-labeled undertaking willing to invest in the Union the most advanced and open regime world-wide. It would be totally unjust and disproportionate to entitle such undertaking to claim also the additional potential protection which can be sought using the traditional tools of a BIT, whose rationale and legal setting is at odds with the EU legal system. In contrast with the usual BIT legal environment, the EU is a solid and harmonized – and often uniform – regime, encompassing virtually all economic aspects of entrepreneurial activities (with the exception of taxation, but hopefully also this last inconsistency will be sooner or later fixed). It further integrates all economic policies with one another (e.g. environmental protection, energy policies, social rights, and so on), as it is normal for comprehensive and autonomous legal systems like the EU. In such a situation, an additional protection claimed by an EU firm against a Member State and based on an intra-EU BIT cannot be allowed, for the same reason why, as the proverb says, one cannot eat his cake and have it too.
5. The judgment will certainly have relevant implications in different areas. In the first place, it will probably doom all investment disputes currently pending before arbitrators that are bound to apply EU law as part of the sources of law applicable to the dispute under the relevant intra-EU BITs. Especially in the case in which the award is in favor of the private investor, it is hard to believe that the State would not challenge it before the competent national courts and ask them to apply the Achmea ruling to set aside the award. Secondly, compelling reasons of legal certainty should finally persuade the still reluctant governments of some Member States to take quick and clear steps in order to terminate, either unilaterally or through a coordinated process at the EU level, existing intra-EU BITs. This step had been requested by the Commission more than a decade ago. And only some Member States (Italy, Ireland, and recently Poland and Denmark) had followed this request and decided to withdraw from existing BITs with other Member States. If this was not the case, now that the Achmea judgment is part of EU law and binds all Member States, one may also consider whether further inaction in this direction by them would not be tantamount to a breach of EU law, with the possibility of an infringement procedure under Art. 258 TFEU.
The Achmea judgment might also chill the proposals made by a group of Member States to establish a new system of ISDS common to all Member States replacing existing intra EU BITs (see Non-paper from Austria, Finland, France, Germany and the Netherlands, presented on April 2016 to the Trade Policy Committee of the Council). Furthermore, the Commission seems to pursue another type of initiative to fill the legal vacuum that would be left by the phasing-out of intra-EU BITs. In its Consultation Document – Prevention and amicable resolution of disputes between investors and public authorities within the single market, the Commission had proposed EU-driven initiatives aimed at creating an investment-friendly, uniform and effective intra-EU investment area, ensuring a more effective application of existing EU investment law, based on the application of free movement of capital and freedom of establishment.
At present, the overall relevance of these initiatives seems however much reduced. In fact, if priorities in this area have to be set, our impression is that the EU should now concentrate on “true” foreign investments in the EU. This topic has become more and more urgent especially after an overall reflection on this matter which not only encompasses the EU, but more generally international trade. To this end, the Proposal for a Regulation of the European Parliament and of the Council establishing a framework for screening of foreign direct investments into the European Union, which the Commission presented on September 13, 2017, and which has already received a substantial positive reaction by the EESC-European Economic and Social Committee (see the Opinion delivered on March 28, 2018), should advance in the legislative procedure to allow the EU a fundamental tool for screening foreign investments and give Member States a common and uniform legal framework, to use in case the need of defending paramount interests of the EU and of the Member States arises. Needless to say, the judgment will have an impact also on other pending matters concerning settlement of disputes in investor-State claims: Achmea will influence the equally awaited – and to some extent parallel – CJEU opinion on the compatibility of the Investment Court System (ics) negotiated in CETA with the Treaties, requested by Belgium on 6 September 2017. This, in turn, will further determine the chances of success, or the way ahead, for another important initiative promoted by the European Commission, namely the negotiation of a multilateral Convention establishing a multilateral court for the settlement of investment disputes: indeed this idea was launched before Achmea and in the context of negotiations concerning in particular investments agreements concluded by the EU with third Countries. Therefore, some further aspects regarding the relationship between EU law and international courts and tribunals will also have to be taken into consideration. In any case, intra-EU investments should be outside the scope of this initiative, as they should no longer be entitled to have special dispute settlement regimes compared to any other litigation among a member State and any undertaking established in the territory of the Union.
In conclusion, the Achmea judgment certainly represents the end of intra-EU BITs; but this is just the beginning of another story, still to be written, in the realm of foreign investments governance at the EU and the international level.
Diretta streaming: "Diritto internazionale (o globale?) e relazioni internazionali, tra egemonia e unilateralismo"

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Art. 258
CJEU


Destruction of aircraft or aircraft facilities.
Destruction of motor vehicles or motor vehicle facilities.
Imparting or conveying false information.
Fraud involving aircraft or space vehicle parts in interstate or foreign commerce.
Commercial motor vehicles required to stop for inspections.
2008—Pub. L. 110–244, title III, §301(j), June 6, 2008, 122 Stat. 1616, redesignated item 39 “Commercial motor vehicles required to stop for inspections” as item 40.
2005—Pub. L. 109–59, title II, §2018(b), title IV, §4143(c)(1), Aug. 10, 2005, 119 Stat. 1543, 1748, added item 39 “Commercial motor vehicles required to stop for inspections” and item 39 “Traffic signal preemption transmitters”.
2000—Pub. L. 106–181, title V, §506(c)(2)(A), Apr. 5, 2000, 114 Stat. 139, added item 38.
1994—Pub. L. 103–322, title VI, §§60008(c), 60021(b), Sept. 13, 1994, 108 Stat. 1972, 1980, added items 36 and 37.
1 So in original. The order of items 39 and 40 does not correspond to the order of the sections in text.
(1) Aircraft.—The term “aircraft” means a civil, military, or public contrivance invented, used, or designed to navigate, fly, or travel in the air.
(2) Aviation quality.—The term “aviation quality”, with respect to a part of an aircraft or space vehicle, means the quality of having been manufactured, constructed, produced, maintained, repaired, overhauled, rebuilt, reconditioned, or restored in conformity with applicable standards specified by law (including applicable regulations).
(3) Destructive substance.—The term “destructive substance” means an explosive substance, flammable material, infernal machine, or other chemical, mechanical, or radioactive device or matter of a combustible, contaminative, corrosive, or explosive nature.
(6) Motor vehicle.—The term “motor vehicle” means every description of carriage or other contrivance propelled or drawn by mechanical power and used for commercial purposes on the highways in the transportation of passengers, passengers and property, or property or cargo.
(7) Part.—The term “part” means a frame, assembly, component, appliance, engine, propeller, material, part, spare part, piece, section, or related integral or auxiliary equipment.
(8) Space vehicle.—The term “space vehicle” means a man-made device, either manned or unmanned, designed for operation beyond the Earth's atmosphere.
(9) State.—The term “State” means a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.
(10) Used for commercial purposes.—The term “used for commercial purposes” means the carriage of persons or property for any fare, fee, rate, charge or other consideration, or directly or indirectly in connection with any business, or other undertaking intended for profit.
(b) Terms Defined in Other Law.—In this chapter, the terms “aircraft engine”, “air navigation facility”, “appliance”, “civil aircraft”, “foreign air commerce”, “interstate air commerce”, “landing area”, “overseas air commerce”, “propeller”, “spare part”, and “special aircraft jurisdiction of the United States” have the meanings given those terms in sections 40102(a) and 46501 of title 49.
“ ‘Aircraft engine’, ‘air navigation facility’, ‘appliance’, ‘civil aircraft’, ‘foreign air commerce’, ‘interstate air commerce’, ‘landing area’, ‘overseas air commerce’, ‘propeller’, ‘spare part’ and ‘special aircraft jurisdiction of the United States’ shall have the meaning ascribed to those terms in sections 40102(a) and 46501 of title 49.
1994—Pub. L. 103–272 substituted “sections 40102(a) and 46501 of title 49” for “the Federal Aviation Act of 1958, as amended” in par. beginning with definition of “Aircraft engine”.
1988—Pub. L. 100–690 substituted “door is opened” for “door in opened” in definition of “in flight”.
1984—Pub. L. 98–473, §2013(a)(1), in first par. struck out “and” before “spare part”, inserted “and ‘special aircraft jurisdiction of the United States’ ”, and substituted “Federal Aviation Act of 1958” for “Civil Aeronautics Act of 1938”.
Pub. L. 98–473, §1010, substituted “passengers and property, or property or cargo” for “or passengers and property” in definition of motor vehicle.
Pub. L. 98–473, §2013(a)(2)–(4), inserted definitions of “in flight” and “in service”.
shall be fined under this title or imprisoned not more than twenty years or both.
shall be fined under this title or imprisoned not more than twenty years, or both. There is jurisdiction over an offense under this subsection if a national of the United States was on board, or would have been on board, the aircraft; an offender is a national of the United States; or an offender is afterwards found in the United States. For purposes of this subsection, the term “national of the United States” has the meaning prescribed in section 101(a)(22) of the Immigration and Nationality Act.
(c) Whoever willfully imparts or conveys any threat to do an act which would violate any of paragraphs (1) through (6) of subsection (a) or any of paragraphs (1) through (3) of subsection (b) of this section, with an apparent determination and will to carry the threat into execution shall be fined under this title or imprisoned not more than five years, or both.
Section 101(a)(22) of the Immigration and Nationality Act, referred to in subsec. (b), is classified to section 1101(a)(22) of Title 8, Aliens and Nationality.
2006—Subsec. (a)(5) to (7). Pub. L. 109–177, §123(1), (2), added par. (5) and redesignated former pars. (5) and (6) as (6) and (7), respectively. Former par. (7) redesignated (8).
Subsec. (a)(8). Pub. L. 109–177, §123(1), (3), redesignated par. (7) as (8) and substituted “paragraphs (1) through (7)” for “paragraphs (1) through (6)”.
Subsec. (c). Pub. L. 109–177, §123(4), substituted “paragraphs (1) through (6)” for “paragraphs (1) through (5)”.
1996—Subsec. (a)(7). Pub. L. 104–132, §723(a)(1), inserted “or conspires” after “attempts”.
Subsec. (b)(4). Pub. L. 104–132, §723(a)(1), inserted “or conspires” after “attempts”.
1994—Subsecs. (a), (b). Pub. L. 103–322, §330016(1)(S), substituted “fined under this title” for “fined not more than $100,000” in concluding provisions.
Subsec. (c). Pub. L. 103–322, §330016(1)(O), substituted “fined under this title” for “fined not more than $25,000”.
1988—Subsec. (a)(3). Pub. L. 100–690 substituted “interfering” for “intefering”.
Amendment by Pub. L. 98–473 effective Oct. 12, 1984, see section 2015 of Pub. L. 98–473, set out as a note under section 31 of this title.
(b) Whoever is convicted of a violation of subsection (a) involving a motor vehicle that, at the time the violation occurred, carried high-level radioactive waste (as that term is defined in section 2(12) of the Nuclear Waste Policy Act of 1982 (42 U.S.C. 10101(12))) or spent nuclear fuel (as that term is defined in section 2(23) of the Nuclear Waste Policy Act of 1982 (42 U.S.C. 10101(23))), shall be fined under this title and imprisoned for any term of years not less than 30, or for life.
2006—Subsec. (a). Pub. L. 109–177 inserted “or conspires” before “to do any of the aforesaid acts” in fourth par.
1995—Pub. L. 104–88 designated existing provisions as subsec. (a) and added subsec. (b).
Whoever is convicted of any crime prohibited by this chapter, which has resulted in the death of any person, shall be subject also to the death penalty or to imprisonment for life.
(a) Whoever imparts or conveys or causes to be imparted or conveyed false information, knowing the information to be false, concerning an attempt or alleged attempt being made or to be made, to do any act which would be a crime prohibited by this chapter or chapter 97 or chapter 111 of this title shall be subject to a civil penalty of not more than $1,000 which shall be recoverable in a civil action brought in the name of the United States.
(b) Whoever willfully and maliciously, or with reckless disregard for the safety of human life, imparts or conveys or causes to be imparted or conveyed false information, knowing the information to be false, concerning an attempt or alleged attempt being made or to be made, to do any act which would be a crime prohibited by this chapter or chapter 97 or chapter 111 of this title—shall be fined under this title, or imprisoned not more than five years, or both.
1994—Subsec. (b). Pub. L. 103–322 substituted “fined under this title” for “fined not more than $5,000”.
1965—Subsec. (a). Pub. L. 89–64 substituted “subject to a civil penalty of not more than $1,000 which shall be recoverable in a civil action brought in the name of the United States” for “fined not more than $1,000, or imprisoned not more than one year, or both”.
1961—Pub. L. 87–338 designated existing provisions as subsec. (a), struck out “willfully” before “imparts or conveys”, and added subsec. (b).
(3) an offense involving major quantities of drugs and punishable under section 401(b)(1)(A) of the Controlled Substances Act (21 U.S.C. 841(b)(1)(A)) or section 1010(b)(1) of the Controlled Substances Import and Export Act (21 U.S.C. 960(b)(1)).
(b) Offense and Penalties.—(1) A person who, in furtherance or to escape detection of a major drug offense and with the intent to intimidate, harass, injure, or maim, fires a weapon into a group of two or more persons and who, in the course of such conduct, causes grave risk to any human life shall be punished by a term of no more than 25 years, by fine under this title, or both.
(B) is a murder other than a first degree murder (as defined in section 1111(a)), be fined under this title, imprisoned for any term of years or for life, or both.
1996—Subsec. (a)(1), (2). Pub. L. 104–294 substituted “408(c)” for “403(c)” in par. (1) and “Export” for “Export Control” in par. (2).
1 So in original. Probably should be preceded by “or”.
if such an act endangers or is likely to endanger safety at that airport, or attempts or conspires to do such an act, shall be fined under this title, imprisoned not more than 20 years, or both; and if the death of any person results from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.
(2) the prohibited activity takes place outside the United States and (A) the offender is later found in the United States; or (B) an offender or a victim is a national of the United States (as defined in section 101(a)(22) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(22))).
(c) Bar to Prosecution.—It is a bar to Federal prosecution under subsection (a) for conduct that occurred within the United States that the conduct involved was during or in relation to a labor dispute, and such conduct is prohibited as a felony under the law of the State in which it was committed. For purposes of this section, the term “labor dispute” has the meaning set forth in section 2(c) 1 of the Norris-LaGuardia Act, as amended (29 U.S.C. 113(c)), and the term “State” means a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.
1996—Subsec. (a). Pub. L. 104–132, §723(a)(1), inserted “or conspires” after “attempts” in concluding provisions.
Subsec. (b)(2). Pub. L. 104–132, §721(g), inserted subpar. (A) designation and added subpar. (B).
Subsec. (c). Pub. L. 104–294 inserted heading and inserted “, and the term ‘State’ means a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States” before period at end.
1 So in original. Probably should be section “13(c)”.
(1) Aviation quality.—If the offense relates to the aviation quality of a part and the part is installed in an aircraft or space vehicle, a fine of not more than $500,000, imprisonment for not more than 15 years, or both.
(2) Failure to operate as represented.—If, by reason of the failure of the part to operate as represented, the part to which the offense is related is the proximate cause of a malfunction or failure that results in serious bodily injury (as defined in section 1365), a fine of not more than $1,000,000, imprisonment for not more than 20 years, or both.
(3) Failure resulting in death.—If, by reason of the failure of the part to operate as represented, the part to which the offense is related is the proximate cause of a malfunction or failure that results in the death of any person, a fine of not more than $1,000,000, imprisonment for any term of years or life, or both.
(4) Other circumstances.—In the case of an offense under subsection (a) not described in paragraph (1), (2), or (3) of this subsection, a fine under this title, imprisonment for not more than 10 years, or both.
(B) $20,000,000 in the case of an offense described in paragraph (2) or (3).
(C) ordering the dissolution or reorganization of any enterprise knowingly used to commit or facilitate the commission of an offense under this section making due provisions for the rights and interests of innocent persons.
(2) Restraining orders and prohibition.—Pending final determination of a proceeding brought under this section, the court may enter such restraining orders or prohibitions, or take such other actions (including the acceptance of satisfactory performance bonds) as the court deems proper.
(3) Estoppel.—A final judgment rendered in favor of the United States in any criminal proceeding brought under this section shall stop the defendant from denying the essential allegations of the criminal offense in any subsequent civil proceeding brought by the United States.
(B) any property used, or intended to be used in any manner, to commit or facilitate the commission of the offense, if the court in its discretion so determines, taking into consideration the nature, scope, and proportionality of the use of the property on the offense.
(2) Application of other law.—The forfeiture of property under this section, including any seizure and disposition of the property, and any proceedings relating to the property, shall be governed by section 413 of the Comprehensive Drug Abuse and Prevention Act of 1970 (21 U.S.C. 853) (not including subsection (d) of that section).
(e) Construction With Other Law.—This section does not preempt or displace any other remedy, civil or criminal, provided by Federal or State law for the fraudulent importation, sale, trade, installation, or introduction into commerce of an aircraft or space vehicle part.
(3) an act in furtherance of the offense was committed in the United States.
Section applicable only to fiscal years beginning after Sept. 30, 1999, see section 3 of Pub. L. 106–181, set out as an Effective Date of 2000 Amendments note under section 106 of Title 49, Transportation.
(1) Sale.—Whoever, in or affecting interstate or foreign commerce, knowingly sells a traffic signal preemption transmitter to a nonqualifying user shall be fined under this title, or imprisoned not more than 1 year, or both.
(2) Use.—Whoever, in or affecting interstate or foreign commerce, being a nonqualifying user makes unauthorized use of a traffic signal preemption transmitter shall be fined under this title, or imprisoned not more than 6 months, or both.
(1) Traffic signal preemption transmitter.—The term “traffic signal preemption transmitter” means any mechanism that can change or alter a traffic signal's phase time or sequence.
(2) Nonqualifying user.—The term “nonqualifying user” means a person who uses a traffic signal preemption transmitter and is not acting on behalf of a public agency or private corporation authorized by law to provide fire protection, law enforcement, emergency medical services, transit services, maintenance, or other services for a Federal, State, or local government entity, but does not include a person using a traffic signal preemption transmitter for classroom or instructional purposes.
Another section 39 was renumbered section 40 of this title.
(a) A driver of a commercial motor vehicle (as defined in section 31132 of title 49) shall stop and submit to inspection of the vehicle, driver, cargo, and required records when directed to do so by an authorized employee of the Federal Motor Carrier Safety Administration of the Department of Transportation, at or in the vicinity of an inspection site. The driver shall not leave the inspection site until authorized to do so by an authorized employee.
(b) A driver of a commercial motor vehicle, as defined in subsection (a), who knowingly fails to stop for inspection when directed to do so by an authorized employee of the Administration at or in the vicinity of an inspection site, or leaves the inspection site without authorization, shall be fined under this title or imprisoned not more than 1 year, or both.
2008—Pub. L. 110–244 renumbered section 39 of this title, relating to inspection of commercial vehicles, as this section.


Disclaimer: Answers to questions provided on this website should not be construed as a legal opinions. These "answers" are derived from the Oklahoma Statutes, court cases, common county practices, and generally accepted audit standards prescribed by the State Auditor and Inspector. The "answers" are an attempt to accurately reflect these sources of information. County Officers should always seek guidance from their District Attorney for more specific and in-depth counsel.
Effective 05-06-2014 Current Bid Limit $15,000.
Effective 05-06-2014 Current Blanket Purchase Order $10,000.
Certified Copies: Can the County Clerk certify one page of a document?
Certified Copies: Can an individual use a certified copy to correct a filed document?
No. Any changes would be altering a certified copy, therefore negating the "certification".
Conflicting Statutes: When two statues have conflicting information, which one prevails?
The more restrictive section prevails.
Culverts: What accounts can you purchase culverts ( i.e. tin horns) from?
Culverts are usually considered a maintenance item as they deteriorate. They can be purchased from capitol outlay. Consistency is important in using the SAME account for the purchases.
Incentive Awards: Can only one Commissioner's district give incentive awards or does it have to be a majority of the Board?
Incentive awards must be by Board action and properly noted in the minutes of the Commission meeting. The policy regarding incentive awards should be detailed.
Inventory: Can inventory cards for disposed items be destroyed?
The county clerk in each county in Oklahoma is hereby authorized to destroy all inventory records, files and reports of any inventory of the county which has been disposed of for three (3) years or more if the inventory account has been subject to a full audit by the State Auditor and Inspector.
Invoices: Can counties use faxed or e-mailed invoices to pay from?
The law requires “proper” documentation, which would be a discretionary decision by the County Clerk. SA & I recommends that the county purchasing agent pay from an invoice that is mailed from the vendor whenever possible. If this is not possible, a faxed or emailed invoice is acceptable.
Nepotism: Are current employees protected under the nepotism law if a new county official takes office (i.e. a newly elected officer's niece already works in the county office in which the new officer was elected)?
The statute on nepotism states that an elected official cannot appoint a relative within the 3rd degree. If that relative is already employed by the county, then the relative can remain. However, that employee may not be eligible for promotion because that would require an appointment by the elected official.
Officer Training: Can officers and deputies be reimbursed for “approved training” prior to taking office?
New officers can be reimbursed for travel, mileage, lodging and meals for approved training prior to taking office. However, deputies cannot be reimbursed.
Open Records: Do county elected officials have to file fees in the County Clerk's office?
Yes. The Open Records law requires any public body to file a written schedule of its fees with the County Clerk's office.
Payroll: Can counties mandate direct deposit for the employees?
No statutory authority for counties to mandate direct deposit currently exists.
Property Indexes: If information recorded by the County Clerk is accessible by public access terminals, does that satisfy the requirement of printing grantor/grantee indexes and other indexes required in Title 19 in book form?
Yes. Information must be available to the public for viewing, and, if requested, a printed copy of the information must be provided.
Receiving Reports: Are receiving reports required on Fuelman invoices?
One report for each invoice is required. Independent verification is important. The purpose of the receiving report is to document that goods were actually received before the county pays for them.
Receiving Reports: Can multiple days be put on one receiving report?
Yes, as long as an indication is made as to when goods/services were actually received.
Rural Fire Districts: Can Sales Tax Monies be apportioned directly to Rural Fire Departments?
There is no statutory authority to remit funds to Rural Fire Departments.
Sham filing: Can the Sham filing statute(19 OS 267) be used when an erroneous instrument is presented for recording?
Title 19 OS 267 can only be used for "sham" filings as described in the statute.
Split purchase order: Can purchase orders be split between fiscal years to avoid bidding?
The law states that purchases made in excess of current bid limit in a 12-month period must be bid. If the intent of the spilt is to avoid bidding, that is in violation of the law and subject to punishment.
State Contracts: Can purchases be made from "out-of-state" state agencies if they are subject to competitive bidding, without going to bid?
No. Purchasing without a bid is limited to state agencies subject to the Oklahoma Central Purchasing Act.
State Contracts: When using a local vendor to purchase a State Contract item, can the local vendor exceed the specification for the same price?
The law reads "same exact item". Substituting an incidental item such as color would be acceptable; however upgrading from a 2009 to 2010 would not be considered an "incidental" specification.
Timesheets: Who keeps time sheets?
Each elected official is responsible to see that timesheets are complete and accurate. The timesheets may be filed with the Payroll Clerk in the County Clerk's office or within each department. Currently, no statutory requirement exists for keeping timesheets.
Unclaimed Property List: Does the Mineral Unclaimed Property Report received from the State Treasurer's office by the County Clerk have to be approved by the board of county commissions?
The clerk shall report to the board of county commissioners that the report has been received, and note the receipt in the minutes of the meeting, so the public can be informed.
Vehicle Tags: How do you get a tag for a leased vehicle?
Contact the local tag agent in your area and ask what their requirements are for a leased vehicle. The Oklahoma Tax Commission shall have the authority to determine what constitutes adequate proof as required by this section.
Web site: What is the GSA website?
Cash Voucher: Do cash vouchers require a receiving report?
Documentation of the receipt of goods or services should be attached prior to approval. The receiving report (SA&I form 4030), or another form providing like information, can be used.
Part time: What is the definition of a part- time employee?
This would be determined by the Personnel Policy in your county. In In terms of retirement, a part-time employee works less than 1,000 hours in a calander year.
Credit card : Can a deputy put meals on a county credit card for day trips?
This is an allowable expense by Statute, if reimbursement of meals is allowed in your personnel policy. This would be subject to IRS regulation of taxing meals with no overnight stay.
Land: Can the Board of County Commissioners sell county-owned land?
Excise-Equalization Board : Must the excise-equalization board sign a new oath of office with each term?
Excise-equalization board members' appointments are coterminous with district 1 and 3 commissioners, and an oath of office should be renewed each four years, regardless of the lack of formal re-appointment by the OTC, judge, or commission.
Legal Counsel: Can county officers hire outside counsel?
The sheriff, treasurer, or assessor in a county shall have the authority to employ a general counsel, either in-house as a staff attorney or through an outside law firm, to advice or represent that officer and his or her office in the performance of the official duties of that office. The board of county commissioners shall approve all contracts for outside counsel. A general counsel employed pursuant to this section shall be compensated from the funds of the employing county office.
Expenditures of Funds: Are there restrictions on expenditures for county officers during elections?
Whenever a county officer holding an elective office will not immediately serve a succeeding term in the same office, it shall be unlawful for the board of county commissioners, during the first six (6) months of the fiscal year in which said term of office expires, to approve claims for the operation of said office totaling in excess of one-half (1/2) the amount allocated for the operation of said office during said fiscal year, unless approval in writing is obtained from the county excise board, and any claim in excess thereof and any warrant issued pursuant thereto shall be null and void. SA&I has interrupted this to also include the carryover funds from Cash Funds.
Open meetings: Can you change a regular meeting?
Open meetings: Can you add regular meetings dates during the year?
No. All regular meetings must be posted by December 15. Additional meetings during the year would be a SPECIAL meeting requiring a 48-hour notice.
Employees : Are E-911 Dispatchers considered emergency personnel under the FLSA?
Open Records: Is an invoice listing Rx for Prisoners a public record?
Disclosing individual prescriptions by patient/inmate name would be a violation of HIPPA laws and this information should be held confidential. If the invoice lists Rx by prisoner name, a copy should be made. The copy should mark out the prisoners name and be attached to the purchase order for documentation for payment. Reference should be made as to the location of the original invoice. The original should be placed in a confidential file or perhaps given to the sheriff for filing.
Pharmacy Records: Is an invoice listing Rx for Prisoners a public record?
Disclosing individual prescriptions by patient/inmate name would be a violation of HIPPA laws and should be held confidential. If the invoice list Rx by prisoner name a copy should be made. The copy should mark out the prisoners name and be attached to the purchase order for documentation for payment and reference made as to the location of the original invoice. The original should be placed in a confidential file or perhaps given to the sheriff for filing.
Deputies: Can a treasurer's deputy sign off on a plat if the treasurer is gone?
By statutory authority, the first or chief deputy or assistant shall carry on the duties of the office during the absence of the principal officer … It is customary for deputies to sign the officers name, then their signature. By statutory authority, the first or chief deputy or assistant shall carry on the duties of the office during the absence of the principal officer … It is customary for deputies to sign the officers name, then their signature.
Voucher: Who is responsible for preparing a cash voucher claim, form 270, for refund of taxes?
All claims for money, subject to refund or disbursement as in this act provided, shall be filed with the county clerk, who is hereby authorized to audit the same, and to issue a voucher for such amounts thereof as he may find to be due the respective claimants. Since the Treasurer is the trustee of the account he/she would initiate the claim form 270, filling with the county clerk and advising the clerk's office of the account to be paid from.
Open Meeting: Can the Board of Tax Roll Corrections' members be together at other times according to the Open Meeting Law?
Any discussion of board business by the board members must be conducted in a posted open forum in accordance with the Open Meeting Act. Small boards whose members have other public roles have a burden to insure that public business is done in the public. Often in small communities, this can seem problematic.
Circuit Engineering: Can Counties purchase from circuit engineering districts without bidding?
Circuit Engineering Districts are considered a State Agency. The County Purchasing Act exempts purchases from State Agency from bidding as long as they are subject to the State Purchasing Law.
Tax Warrants: How long is a tax warrant valid?
Sixty (60) days from the date of issuance. A warrant is issued when the Treasurer delivers it to the Sheriff.
Tax Warrants: Can a payment plan be established after issuing a Tax Warrant?
Yes. The Sheriff is allowed to utilize any method, allowed by law, to collect the tax. SA&I advises that any payment plan should be a joint effort with the Treasurer's office.
Inventory: What is the proper documentation to trade in an item?
To trade in an item towards a purchase of less than the current bid limit, the trade-in must be bid to establish a "market value." If the trade-in is toward a purchase greater than the current bid limit it should be included in the bid document. A trade-in value should not be considered in establishing whether the item should be bid.
Inventory: Who is responsible for updating inventory?
Each elected official is responsible for updating the inventory and providing a copy to the county clerk.
Inventory: How can you remove items from inventory that can not be located?
Document the items not found; File a sheriff's report. Present to Board of County Commissioners.
Affidavit: Does the Affidavit for Contracts and Payments have to be attached to each purchase order?
No. Any county executing a contract with any architect, contractor, supplier or engineer for construction work, services or materials which are needed on a continual basis from such architect, contractor, supplier or engineer under the terms of such contract, or executing more than one contract during the fiscal year with such architect, contractor, supplier or engineer, may require that the architect, contractor, supplier or engineer complete a signed affidavit as provided for in subsection A of this section which shall apply to all work, services or materials completed or supplied under the terms of the contract or contracts.
Bidding: Is outfitting a fire truck with additional equipment required to be bid?
If the "total" cost of the fire truck, including add-ons will exceed the current bid limit then the items would need to be bid as a project.
Election Board Depository: Can purchases be made from the Election Board depository account?
Officers Salary: Who is responsible for setting salaries for county officers?
Board of County Commissioners determine the salaries for all county officers, including those counties which utilize the County Budget Act.
OTC Form 936-R: How long does the repossessor of a manufactured home have to secure the 936-R from the County Assessor?
The repossessor has up to 30 days to secure the 936-R from the County Assessor in the county from which the manufactured home was moved.
Inventory: Are there inventory restrictions for county officers during elections?
Elections: Elected Officers: Are there restrictions on officers that are not opposed during an election.
Emergency: Iis there a limit on emergency purchases determined by the Board of County Commissioners?
The BOC can declare an emergency regarding public building and waive the competitive bidding. The emergency declaration must be in an open meeting and approved by Board action.
Inventory: Where are the consumable inventory reports filed?
They are kept on file in the originating office. They can be kept electronically. Records can be destroyed after 5 years.
Federal Contracts: Can you buy off GSA Contract?
The statutes do allow for these purchases. However Federal contracts are limited to areas of technology, homeland security, public health emergencies. See GSA.gov for more information.
Emergency: Does an elected official need to come to the Board of County Commissioners meeting to share a declaration of emergency?
A county officer has authority to certify that an emergency exists requiring an immediate expenditure of funds. Such an expenditure of funds shall not exceed Five Thousand Dollars ($5,000.00). The county officer shall give the county purchasing agent a written explanation of the emergency along with a purchase order to be encumbered the following "business day". The county purchasing agent shall attach the written explanation to the purchase order.
Uniforms: Can the county give employees a uniform allowance?
Uniform allowances are allowed to be given to county employees. HOWEVER, under IRS regulations the allowance would be taxable UNLESS it is part of an accountable plan (receipts are provided within 120 days that the allowance is given). This means that the cost of uniforms, equipment and maintenance of such would need to be substaintiated with receipts to verify actual cost equal or exceeding the amount of the monthly allowance. If actual cost is less than the monthly allowance the difference would be TAXABLE.
Interest earnings: Can Highway Fund interest earnings be placed in the General Fund?
Yes, because there is specific legislation giving the county commissioners the authority to place it in the general fund if they so choose. It should be noted however, that Attorney General Opinion 93-32 declares that constitutional law mandates that income earned on investment of dedicated taxes must be deposited with the principal (sales tax to sales tax; etc). However, May 9 1995, specific language was added to 19 OS 339 giving BOC authority to direct Highway Cash interest earnings to the General Fund.
EMS Funding: How is an EMS District Dissolved?
Any district may be dissolved, or the millage levy changed, by a majority vote of the registered voters voting at an election called for that purpose by the county commissioners of each county or part thereof included within the district; provided that such an election shall not be called unless either three-fifths (3/5) of the trustees of such district request the county commissioners to call such an election, or the respective county commissioners are presented a petition signed by not less than twenty percent (20%) of all registered voters in the district.
Lost Warrants: Must the Indemnity Bond for Lost Warrants be presented to the Board of County Commissioner?
Idemmnity Board, SA&I Form 176 does not have to go before the Board. This form is developed in accordance with Title 62 OS 555 giving specific procedures for dealing with "second or duplicate checks.
Utilities: Can utility bills be encumbered upon receipt of current billing?
Yes. Utility bills should be verified and, when received, be encumbered for payment. Timely encumbrance is important.
Utilities: Does a purchase order for payment of utilities need a receiving report?
No. The invoice should be reviewed and verified by a county employee. Verification can by made by initialing and dating.
School Budget: Does the county excise board approve the budget of local school (K-12) districts?
Yes. The Statute outlines the Excise Board responsibility in approval of budgets for taxing entities. Please note "municipality" or "municipal subdivision" as used in Sec 3007-3009 is defined in Sec 3014 as a taxing jurisdiction authorized by law to levy ad valorem taxes. Section 3020 specifically lists schools with regard to excise board functions.
Career Tech Budgets: Does the county excise board approve the budget of local technology center schools?
Yes. The Statute outlines outline the Excise Board responsibility in approval of budgets for taxing entities. Please note "municipality" or "municipal subdivision" as used in Sec 3007-3009 is defined in Sec 3014 as a taxing jurisdiction authorized by law to levy ad valorem taxes.
Reference: Title 68, sections 3007 & 3009, 3014, 3020; Title 70, Sec. 14-108, G.
Quotes: Do repairs need three quotes?
Improvements to PUBLIC BUILDINGS in the range of $5,000 to $50,000 requires written bids. Repairs and Improvements in excess of $50,000 must be competitively bid.
Repairs: Do repairs need three quotes?
Public Buildings: Do repairs need three quotes?
Open Meeting: If a meeting is cancelled due to inclement weather can the meeting be held the following day?
NO. The meeting must be rescheduled. Regular meetings can be rescheduled by posting a 10 day notice with the County Clerk with the date and time of the rescheduled meeting. Or, a special meeting can be called requiring a 48 hour notice.
Hours: Do all county offices in the courthouse have the same operating hours?
Blanket Purchase Order: Must blanket purchase orders be published?
All blanket purchase orders must be approved by the Board of Commissioners prior to encumbrance, which would require an agenda item.The Statutes do exempt the listing of approved blanket purchase orders from publication. Best practise would be to include the motion and the vote to approve blanket purchase orders, but do not list the individual blanket purchase order. They will be listed upon approval for payment.
Change drawer: Can officers have cash to give for change?
Interest: Can Highway cash interest earnings be placed in General Fun?
Yes. It should be noted however,that Attorney General Opinion 93-32 declares that constitutional law mandates that income earned on investment of dedicated taxes must be deposited with the principal (sales tax to sales tax; etc). However, May 9 1995, specific language was added to 19 OS 339 giving BOC authority to direct Highway Cash interest earnings to the General Fund.
EMS Funding: If an EMS is collecting millage for funding and the EMS is shutting down services, what happens to the money collected from the mills?
Remaing funds should be transferred to the County General Fund.
Payroll: Are employee terminations reported to Oklahoma Employment Security Commission?
Payroll: Can county clerks charge a fee for handling garnishments?
A garnishee may deduct a fee of Ten Dollars ($10.00) from the funds of the defendant in the garnishee's possession as reimbursement for costs incurred in answering. If the garnishee is not indebted to the defendant and the garnishee's answer evidencing that is filed and mailed or delivered to the judgment creditor or to the judgment creditor's attorney of record, the garnishee may assess the judgment creditor a fee of Ten Dollars ($10.00) as reimbursement for such costs. Garnishments must be "answered each pay period'"
Payroll: Is overtime pay reported as salary to Oklahoma Public Employee Retirement?
Lump-sum payment made to a member for accrued or earned vacation or sick leave is not subject to retierment contributions. Also, do not pay retierment contributions on vacation, annual leave, or holiday pay paid to a member who is receiving both their regular salary and payment for their vacation.
Payroll: Is vacation or sick leave subject to retirement contributions?
It is illegal to pay retirement contributions on overtime wages or compensatory time received by exempt employees. Overtime hours and wages cannot be used in determining a member's service credit time or average compensation when calculating retirement benefits. Wages paid to a member for overtime work should not be reported in the hours worked column or any other place on the payroll report.
Payroll: Are longevity payments subject to retirement contributions?
Yes. Longevity payments are included as salary and contributions are paid on same.
Payroll: Do counties have to file an Equal Employment Oppotunity report?
Garnishments: When does the 6-month period begin for Continuous garnishments?
The six month period begins upon time of service (when filed with clerk), unless, the judgment debtor is already subject to a garnishment. The second garnishment shall take effect immediately upon the conclusion of the prior garnishment, and shall be effective for its full period of time.
Resale: Is the Resale Fund subject to purchasing laws?
Purchases made for goods and services from the Resale property fund are subject to the purchasing laws including bidding and documentation of receipt of goods (i.e. receiving report) and any county policy and procedures as set forth by the purchasing department. The exception would be the method of payment. Resale expenses are paid by cash voucher and claim as processed by the County Clerk. There should be a Financial Statement submitted each June 30 to the Board of County Commissioners for approval.
Health Department Fees: Can Fees collected by the Health Department be appropriated to the current year budget?
County health departments may collect fees for health related services and fees for environmental services. Money received by a county shall be deposited with the county treasurer in the county where earned as provided for in 19 OS § 681. The funds shall be added in accordance with 19§ 683-684, to specified items of the Health Department appropriations and no further action or appropriation of the excise board shall be required to make such available for expenditure.
Fees: What fees are deposited to the General Fund?
The general fund shall include all appropriations and expenditures financed from the levy of ad valorem tax under any of the provisions of Section 9, Article X, of the Oklahoma Constitution, and all revenues from sources other than ad valorem taxation except the proceeds derived from the sale of bonds and those revenues specifically required by law to be deposited into the sinking fund, the building or replacement funds, cash funds, or any other fund or funds so specifically designated by statute.
Land : Does 19 O.S.Supp.2013, § 421.2 prohibit a board of county commissioners from declaring county-owned real property as surplus to the needs of the county during the time period beginning 30 days before the filing period for any election of a county commissioner and ending the day after a county commissioner is sworn in?
Title 19 O.S.Supp.2013, § 421.2 does not prohibit a board of county commissioners from declaring county-owned real property as surplus to the needs of the county during the time period beginning 30 days before the filing period for any election of a county commissioner and ending the day after a county commissioner is sworn in. Source 2014 AG 9. This should be read in entirety.
Groceries: Do groceries have to be bid for senior citizens?
There is no feasible means on bidding groceries. The use of a blanket purchase order for groceries would be best business practice, but not required. Due diligence should be used in acquiring the best price possible.
Travel: Does a purchase order have to be encumbered prior to travel?
Drug Test: Is a receiving report required for a drug test?
Equipment: What is the proper procedure for purchasing equipment from another county department?
The purchase of equipment between county department should placed on a BOC agenda. It could be formalized with a Resolution or by using Transfer document SA&I #1-9001 detailing the departments involved and price of equipment. The funds would be paid by using a purchase order. This should only be used in RARE situations.
Forms: Can names be pre-printed on purchase order?
Preference is no pre-printed names. However, any pre-printed names would still need to be accompanied by an original signature.
Equalization Board: Can the Equalization Board extend hearings past May 31?
Fire Departments: What is the amount of blanket bond coverage needed for non-employee designated requisition and receiving officers?
All non-employee requisitions and receiving officers, for Fire Departments organized under Titles 11, 18 or 19, shall provide evidence of blanket bond coverage or employee dishonesty liability insurance. The amount of coverage should be at a minimum the amount of coverage carried on the county employees or commensurate with the amount of public dollars the individual has under their authority. A copy of the bond or policy shall be on file with the County Clerk's office. The State of Oklahoma Fire Department Insurance Program is a resource for coverage for Fire departments, 1-888-521-7475. This procedure is recommended by the State Auditor & Inspector to be in place for all non-county employees designated receiving and requisitioning officers.
Purchasing: Are multiple purchases for a single item required to be on a blanket purchase order?
Blanket purchase orders MAY be used for recurring goods and services, however they are not required. If a single item is being purchased, such as rock, a single purchase order could be issued and multiple purchases made as long as it does NOT exceed the amount encumbered (or quantity). A receiving report should be attached for EACH day of purchase. A single purchase order would require a description of goods or service and quantity to be purchased. A Blanket purchase order is REQUIRED for REPAIRS in excess of $10,000.
Inventory: Can a county sell surplus property to other another county by agreement or resolution?
It is advised to solicit bids because of Attorney General Opinion issued 4-20-1998 or solicit advise from your local district attorney.
Auction: Can the County Commissioner set a minimum bid requirement at an auction?
There is no statutory guideline. Bid requirements should be communicated with the auctioneer and noted in the minutes of the commission meeting.
Auction: Who advertises for public auction for circuit district auctions?
Bid: Can you purchase items in phases (such as mini-blinds), not exceeding $10,000 in each phase and not bid?
If the total cost of the blinds would exceed $10,000 (even if it is separated by a fiscal year) the item (or project) is subject to the bidding procedure. The specifications could set out a purchase schedule over a period of time.
Bid: Do in-state bidders receive a 10% preference?
No. 74 OS § 85.17 was repealed November 1, 1999.
Bid: If the County enters into an agreement with a third party to solicit bids for health insurance, is the third party subject to the bidding laws?
AG Opinion 1985 - 45 states that insurance coverage for the county and/or it's employees is exempt from bidding.
Bid: What is the procedure when a vendor cannot provide product at the bid price?
The county my solicit telephone quotes for the items needed from the list of qualified bidders and purchase from the lowest and best quote.
Bid-multicounty: Can county health departments use the same bid?
Counties may purchase from joint bids provided the publication of said bid was joint. Notice of publication must list all participating counties; advertised in each county and selected vendor must be willing to provide to all participating counties.
Bid Length: Can awarded bids overlap in a fiscal year?
Yes, however they cannot exceed a 12-month period. Purchase orders should be reissued on July 1.
Blanket Purchase Orders: Can you make multiple payments on a blanket purchase order?
Yes, they are called progress payments. Documentation for each payment is very important. The County Clerk should make sure the accounting software can make adjustments for partial payments without releasing the balance of the BPO.
Blanket Purchase Orders: If blanket purchase orders are not used, do they need to close after 30 days?
The statute doesn't give a time limit; however, if there is not a reason to leave the BPO open, it should be closed to allow the funds to be released back into the account. The exception would be that all BPO's should be closed on June 30 of each year.
Blanket Purchase Orders: Should blanket purchase orders be closed out at the end of the fiscal year?
Yes, purchases cannot be made with prior year funds. The purchasing agent should contact the requisition officer and remind them to close out the purchase orders. Good cash management practices would encourage a BPO to be closed every 30-days so the unused funds can be released and adjusted back into the appropriation account. However, the statute does not give a time limit.
Blanket Purchase Orders: What is the approval process for blanket purchase orders (BPO)?
The County Clerk presents the BPO's to the Board at the time of issuance, and the County Clerk should list approval in the minutes. When a BPO is presented for payment, the officer signs that it has not been exceeded, and the Board signs the approval for payment.
Budget - Supplemental: Do supplemental school budgets have to be published and signed by the Excise Board?
Yes, and they are submitted to and approved by the County Excise Board.
Budget - Temporary: Do temporary estimates of needs for schools have to be published?
No. However, they are submitted and approved by the County Excise Board.
City-County Joint : May counties and cities/towns purchase together?
Yes, through an interagency (inter-governmental) agreement.
Claims: Do late fees and interest have to be paid by the county on a credit card?
Yes. It is usually specified in the credit card agreement. It is suggested the due date be adjusted to avoid paying these charges.
Copier Maintenance: Does the $10,000 limit apply per copier or company for maintenance agreements?
Service or maintenance contracts on machinery or equipment that are entered into at the time of the purchase are not required to be bid. If not, the agreement would be by copier and would require a bid if the agreement amount is over $10,000.
Credit Cards: Can any county officer have a credit card?
No. Only County Sheriffs are allowed to have credit cards. Account cards from suppliers are allowed (Wal Mart, Hobby Lobby, etc.), but they are different from credit cards. A credit card is a revolving credit, usually with a third party. Credit cards must be in the counties name and approved by the Board of County Commissioners.
Credit Cards: Can the County use reward points on Sheriff credit cards?
Monetary value should go to the General Fund. If not monetary, the reward should be used for county purposes only. Under NO circumstance can the rewards be for personal use. Any item "purchased" should be placed on inventory in accordance with policy.
Credit Cards: When a new County Sheriff(or a County Commissioners) takes office, should the credit card be renewed?
Change of officials does not matter because the card is in the name of the County. Renewal of the agreement would be subject to the terms of the agreement.
Emergency Purchases: Can a county officer determine an emergency?
A county officer can determine that an emergency exists and expend up to $5000 without a purchase order. The purchase order should be issued as soon as possible.
Employees: Who appoints the first deputy?
Each principal officer must appoint a first or chief deputy and record the appointment in the County Clerk's office. This includes foremen and undersheriffs.
Equipment: Can a county loan or lease equipment to another county?
Yes. With restriction, a county can loan or lease equipment to another county. Read the Statutory reference.
Estimate of Needs: Can Estimates on Needs filed by County Officer be increased?
Excise Board: How often are the County Excise Board members reappointed?
County Excise Board members' terms are coterminous with that of the County Commissioners in Districts 1 and 3.
Fuel Charges - Sheriff: Can the sheriff charge fuel within the county?
Yes, within limitations. Credit cards may be used for the purchase of fuel, within the county, on weekends, nights, or holidays when fuel cannot be obtained from the vendor to whom a bid for such fuel purchases has been awarded.
Inventory: Can bunker gear (for Fire Departments) be inventoried as one unit or do you need to inventory each unit (pants, jacket, boots, etc.)?
Either way is acceptable. If inventoried as a unit, the items should be described on the inventory card. It is important to be consistent with how other inventory is tracked.
Inventory: If a product was purchased that costs more than $250.00, but less than $500, and was not put on the inventory, do you still have to surplus it?
Yes, county-owned property needs to be shown as surplus and entered into the commission minutes. This provides a better record. Although it is not a statutory requirement, it is considered a good practice.
Inventory: If inventory is determined as surplus and sold, who gets the money?
The money should be deposited into the fund that originally paid for the equipment (regardless of who sold the equipment); If that cannot be determined, all monies should go to the general fund.
Inventory: Is there a separate form for land inventory?
Counties can use SA&I form 3511 or 9005, completing those parts relevant to land.
Inventory: What is the criteria for ROAD and BRIDGE material to be kept on consumable inventory?
For items purchased in lots of $500.00 or more (rock, bridge beams, culvert, etc), the report is filed with the originating officer.
Inventory: Who is responsible for putting county-owned property on inventory when it is acquired at resale?
The County Treasurer should provide a list of the county-owned property to the Board of County Commissioners. A copy should be filled with the County Clerk.
Invoices: Do Invoices have to be original?
The statute is silent on this. However, it is HIGHLY recommended by SA & I and by good accounting practices to pay from the original invoice to avoid duplicate payment. If a copy is used, document that it is a copy or that the invoice was paid from a duplicate.
Invoices: If the invoice is dated before the purchase order, is the county required to pay it?
Yes, the County would be responsible for the debt. However, the purchasing law is very specific that purchase orders shall be encumbered prior to the purchase. The officer should sign documentation as to why this procedure was not followed.
Jail: Do counties with a population over 100,00 have to bid for food for the jail?
Yes. They must bid or take telephone quotes.
Land: Do purchases of land have to be bid?
The land is considered a sole source in most situations, but there are statutory guidelines for the selling of property requiring 1) three appraisals of property; 2) District Attorney approval; and 3) Board of County Commissioners approval of the purchase price. It is recommended that these procedures be mirrored in purchasing land. Upon agreement of price, purchasing procedures would be followed in the issuance of purchase order, encumbrance, etc. NEW LAW EFFECTIVE NOVEMBER 1, 2008, 19 OS 421.2 (G) New law sets out procedures in detail regarding: Board action; Certified Appraisal; Sealed Bid; Commissioners can compel auction to determine highest market value; using land as collarteral to finance future projects and retaining use of land.
Lease: Is the $10,000 cap of lease/rentals without a bid subject to a fiscal year limitation or total lease period?
The total lease period can not exceed the current bid limit in payments, unless the item has been bid.
Lease: Where are 120-B forms for lease purchase agreements filed?
The law requires the State Auditor and Inspector to be notified of lease agreements, and the practice is that a copy is to be sent prior to approval. The county should maintain a copy in the County Clerk's office.
Liens: How long does a contractor have to file a mechanic lien?
The general contractor has 120 days and a subcontractor has 90 days.
Medical: How do you handle the purchasing for an inmate who is hospitalized?
A blanket purchase order should be issued with an estimated cost.
Military: Can an elected county official serve in the US Military simultaneously?
Although the Oklahoma Constitution, Article 2, Section 12 appears to say that you cannot be an elected official and be in the military at the same time, it has been interpreted by attorney generals and the legislature over the years to mean that you can be both an elected official and in the military, just not at the same time. In order to be actively on military duty, the official must take a leave of absence until the duty is over. Title 51 OS § 3.1 addresses this in that it says that if an official is absent for more than six months on military duty, the officer must take a leave of absence, and the interim official must surrender the position back to the official when they return.In essence, the official cannot be paid by both the county and military at the same time. The exception to that is in Title 44 OS § 209, which says that during the first 30 calendar days of duty, the officer is still paid by the county. After that, the county MAY elect to pay the difference between the officials' county pay and military pay.
Payroll: Can Counties pay bonuses?
No. Longevity and safety awards are considered the only additional "bonuses" for employees and would need to be budgeted.
Payroll Taxes: An invoice is received for unemployment benefits after the end of the fiscal year, can it be paid?
The question is - when is it a liability? The answer in this situation would be when it is known which, makes it a current liability and obligation. Pay the invoice out of current year money and document that it was not a known liability prior to June 30.
Plats: Are there requirements for filing a plat in the County Clerk's office?
Yes. Specifications are outlined in 11 OS ? 42-104; 46-104.
Professional Services: When you contract with a professional service, how do you encumber the amount on purchase orders?
Professional Services are defined in the Statute, 18 OS 803.6 An estimated amount is okay. Have the professional give you a good estimate.
There is no statutory provision for exceeding the encumbered amount. Caution should be used in estimating price and delivery costs. If in rare cases, price exceeds the encumered amount, be sure and document.
Purchasing: Are maintenance and upgrades considered repairs?
Items added to equipment such as adding lights to a patrol car or sirens to a fire truck, etc. would be considered upgrades and would be subject to bidding. Upgrades to software MAY be considered sole source and would need the proper documentation.
Purchasing: How many receiving officers can each department appoint?
Each officer can designate up to two employees to act as receiving agents (and requisition agents). These appointments must be filed with the County Clerk and entered into the Commission minutes. Officers can designate employees in a different office if there is only one employee in their office. One employee can not serve in both positions.
Purchasing: Is it $3.00 a ton or a yard for unprocessed materials?
The statute reads a yard or a ton.
Receiving reports: If multiple receiving reports are required, does each one have to be signed?
All items should be itemized. If it is a matter of not having enough room to report the total delivery, you can simply state "continued - see attached". HOWEVER, if items are received at different times, then each one should be signed as the goods are received.
Receiving reports: Is a signature from the delivery person required on the receiving report?
If the person is not available, document who delivered (UPS, Post office, etc.) and attach any documentation such as a delivery ticket. The receiving report should be itemized and signed by the receiving officer.
Repairs: Is there an upper limit on repair of equipment?
Each deparment needing repairs of equipment, machinery, or vehicles shall make an estimate and requistion a purchase order from the purchasing agent. Repairs in excess of $5000 must be submitted on a blanket purchase order and approved by the Board of County Commission.
Repairs: What is the procedure if the repairs exceed the $5000 estimate?
Approve a blanket purchase order and cancel the original. The blanket purchase order should be documented with reference to the original PO. A BPO can be increased to cover unforeseen expenses. Caution should be used.
Repairs-Out of state: What are the different ways we can take care of out-of-state repair bills for the sheriff's department?
For repairs during out-of-state travel, the options available are: 1) purchase order issued to vendor; 2) credit card; and 3) cash (if this is done, it would need to be because the vendor would not accept a purchase order and no credit card was available.
Requesting and Receiving officers: Must the appointment of requesting and receiving officers be made each fiscal year?
No. If the list is kept up to date each time a change is made, you do not need to do a new list at the beginning of each fiscal year.
Safety : Do counties have to have safety meetings and do officers have to attend?
There is no statutory requirement for safety meetings. Your insurance carrier may require it.
Safety Awards: Can county officials receive safety incentive awards?
No. It is prohibited by Statute.
Safety Awards: Who determines amounts of safety related incentives for the county?
Scrap metal: Can the county sell scrap metal?
Tax Statements: Are County Treasurers required to mail tax statements?
Treasurers are required to send tax statements 30 days after the tax rolls have been completed.
Tort Claim: What is a Tort Claim?
A tort is defined as a legal wrong, independent of contract that involves the violation of a duty that results in a loss to any person, association, or corporation caused by an act by public officials within the scope of their employment. A tort claim is not a lawsuit. The Claim must be filed with the County Clerk and presented to the Board of County Commissioners. The Board can approve, deny, or allow the claim to expire by operation of law.
Travel: Can county employees get reimbursed for meals without an overnight stay?
Oklahoma Statutes allows for reimbursement. However, there are IRS rules regarding reimbursement of meals without an overnight stay.
Travel: Can tips for meals be paid on the credit card ?
The statute is silent; there is no guidance on this, therefore it needs to be stated in the county's policy and procedure manual.
Travel: If a county officer is receiving statutory travel allowance on their personal vehicle, can the county supply him/her with a pike pass?
For officers receiving a monthly travel allowance,the Pike Pass could only be used for out-of-county travel. For officers driving a county vehicle and employees on official business, the county can issue a county pike pass.
Utilities: Do counties have to pay tax and late fees on utility bills?
Public utilities regulated by the Corporation Commission may not assess any late fees upon the county until a 30-day period has lapsed since the receipt of the bill.
Web Site: What is the State Auditor and Inspector's Web Site?
Web Site: What is the ACCO web site?
Web Site: What is the County Training Program Web (OSU) site?
Web Site: What is the Oklahoma Tax Commission Web site?
Web Site: Where can I find Oklahoma Statutes on line?
Web Site: Where is the IRS web site?