author: LAVENDER, J.

text:
    2002 OK 68
    Bruce V. WINSTON and Rodney C. Ramsey, Plaintiffs/Appellants, v. STEWART & ELDER, P.C., an Oklahoma corporation; Stewart & Elder, a professional corporation; A.T. Elder, Jr.; Michael C. Stewart; and SE Properties, an Oklahoma partnership, Defendants/Appellees.
    No. 94,699.
    Supreme Court of Oklahoma.
    Sept. 17, 2002.

      A. Daniel Woska of Woska & Hasbrook, PLLC., of Oklahoma City, OK, for the plaintiffs/appellants.
    B.J. Cooper and William C. McAlister of the Law Offices of B.J. Cooper, of Oklahoma City, OK, for the defendants/appellees.
   LAVENDER, J.

T1 Today's appeal requires the Court to assess (1) the trial court's grant of summary judgment to Stewart and Elder, individually, SE Properties, and Stewart & Elder, a professional corporation, in a suit to enforce stock-purchase and employment agreements between (a) Bruce Winston and Rodney Ramsey [Winston/Ramsey or plaintiffs] and (b) Stewart & Elder, P.C. [law firm] and (2) the denial of summary judgment to plaintiffs. Upon review we hold the trial court correctly awarded summary judgment to SE Properties and Stewart & Elder, a professional corporation [Corporation]. Nonetheless, it was error to grant summary judgment to AT. Elder, Jr. and Michael C. Stewart since unresolved questions of material fact remain as to them. We also hold that the provisions of 18 0.8.2001 § 1099. do not render moot the plaintiffs' claims against law firm or Stewart and Elder, as individuals.

I

FACTS AND PROCEDURAL HISTORY

2 The history of today's case in the trial court is rather convoluted and stretches over an extended period of time. The cause began primarily as an action to enforce employment contracts and shareholder agreements. After the case's institution the trial court placed law firm in receivership. At the receivership's conclusion all sides-except law firm-sought summary judgment. The trial court entered summary judgment for Corporation, SE Properties and Stewart and Elder, as individuals, and denied the same to plaintiffs.

T3 Plaintiffs were employees and shareholders of law firm. Winston resigned from law firm on July 22, 1994 and Ramsey terminated his employment relationship on November 12, 1994.

T4 After plaintiffs' resignation defendants Stewart and Elder-majority shareholders of law firm-concluded that law firm was no longer a viable economic entity and themselves resigned from law firm on December 81, 1994. Stewart & Elder, P.C., was dissolved contemporaneous with their resignations. Stewart and Elder caused a new entity-Stewart & Elder, a professional corporation-to be incorporated on December 30, 1994 and went to work for it on January 1, 1995. Plaintiffs allege that Corporation operated from the same offices as law firm earlier had, continued to use the same letterhead stationery law firm had earlier used and used the same "book of business" developed by law firm.

T5 On September 15, 1995 Winston and Ramsey brought suit against law firm alleging breach-occasioned by law firm not making required payments-under the Winston/Ramsey employment and shareholder agreements. Plaintiffs assert that upon termination their status changed from law-firm employee/shareholder to that of law-firm creditor. They allege that Stewart and Elder (as majority shareholders) engaged in self dealing in the operation of law firm. They also complain that Stewart and Elder engaged in preferential treatment of other law-firm creditors which caused them harm. In their petition plaintiffs seek an accounting from Corporation and law firm and recoupment of certain payments made by law firm to Stewart, Elder and SE Properties (law firm's landlord)-an entity owned by Stewart and Elder.

16 After plaintiffs' suit was filed, the district court appointed a receiver to marshal and sell law firm's assets. The receiver undertook and completed his responsibilities and was discharged by the trial court's November 22, 1996 order. The discharge order denominated Stewart, Elder, Winston and Ramsey as shareholders of law firm at the time of law firm's dissolution.

T7 Law firm timely answered plaintiffs' petition on October 18, 1995. The remaining defendants did not timely file a response. Upon motion the trial court permitted their answers to be filed on September 10, 1998. In the interim Winston and Ramsey-on July 18, 1998-moved to amend their petition to assert additional theories of Hability in support of their claim against Stewart and Elder, individually. In their proposed amendment they allege that not only are Stewart and Elder law firm's alter ego but also that they breached the fiduciary duties owed by majority shareholders to minority shareholders. The trial court denied plaintiffs' motion to amend on September 28, 1998. Plaintiffs and defendants [except law firm] then each sought summary judgment. The trial court entered summary judgment for Stewart and Elder, individually, SE Properties, and Corporation. In its April 18, 2000 order the trial court denied, "as moot," plaintiffs motion for summary judgment against law firm.

1 8 Plaintiffs appealed. The Court of Civil Appeals reversed the trial court's entry of summary judgment and remanded the cause for trial. Defendants sought certiorari which was granted.

II

THE STANDARD OF REVIEW

19 Today the Court is called upon to review both a trial court's grant and denial of summary judgment. Such review is conducted de movo. Although in its consideration of a motion for summary judgment the trial court considers factual matters, it ultimately must decide entitlement to judgment as a matter of law after it decides that it is clear there are no disputed material-fact questions. Oklahoma's extant jurisprudence is replete with numerous judicially-enunciated guidelines for assessment of the challenged summary judgment.

110 Summary process allows for the isolation and identification of non-triable fact issues. The trial court cannot weigh the supporting documents or deposition testimony, but considers the same only to determine if there is a factual dispute. If reasonable minds might reach different conclusions when viewing the evidentiary materials (even those which are undisputed), summary judgment is inappropriate Even when faced with an uncontroverted statement of facts, it is incumbent upon the trial court to insure the motion for summary judgment is meritorious. All inferences and conclusions which may be drawn from the underlying facts must be taken in the light most favorable to the party opposing summary judgment. Lastly, before rendering summary judgment the trial court must rule out all theories of liability fairly comprised within the eviden-tiary materials before it. Summary process is properly invoked only when it serves to eliminate a useless trial and should never be used to substitute a trial by affidavit for a trial by law.

III

THE TRIAL COURTS NOVEMBER 22, 1996 ORDER DISCHARGING LAW FIRM'S COURT-APPOINTED RECEIVER DOES NOT AFFECT LAW-FIRMS CONTINUED EXISTENCE UNDER 18 0.8.2001 § 10998 TERMS FOR PURPOSES OF PENDING LITIGATION

111 Defendants take the position that because plaintiffs did not appeal within thirty (80) days from entry of the trial court's November 22, 1996 order discharging law firm's court-appointed receiver, that order is final and unappealable. They next reason that since all payments required under the "now-unassailable" discharge-order's terms have been made, law firm is dissolved as a matter of law under § 1099's provisions. Plaintiffs argue that the discharge-order is interlocutory and remains appealable until such time as judgment is entered on plaintiffs' claim against law firm and Stewart and Elder, individually. Plaintiffs further assert that full execution of the discharge order does not affect law firm's continued existence under § 1099's terms so long as no judgment is entered on plaintiffs' claim in its pending suit.

112 Ascertainment of the legal effect which should be accorded the discharge-order in issue requires us to construe the following provisions of § 1099:

With respect to any action, suit, or proceeding begun by or against the corporation either prior to or within three (8) years after the date of its expiration or dissolution, the action shall not abate by reason of the expiration or dissolution of the corporation. The corporation, solely for the purpose of such action, suit or proceeding, shall be continued as a body corporate beyond the three-year period and until any judgments, orders or de-erees therein shall be fully executed, without the necessity for any special direction to that effect by the district court. [Emphasis added.]

In construing the above statutory provision the Court is mindful that if a statute's language is clear and unambiguous, its terms are to be given their reasonable and sensible meaning. When «unambiguous statutory language is a case's focus, the statute's employed lexicon constitutes the highest proof of legislative intent and further construction is not mandated. Fundamental to all statutory construction is ascertainment of legislative intent and purpose as expressed in the act's language. This process requires that "relevant provisions must be considered together, where possible, to give force and effect to each other." If the statutory provision under review is part of the act, its meaning is ascertained by consideration of the whole act in light of its general purpose and objective.

{13 Application of the above statutory-construction standards commands the conclusion that § 1099's terms progeribe an action's abatement predicated upon a corporation's dissolution while litigation-filed, as here, within three years of the corporation's date of dissolution-is pending. The employed language is clear and unambiguous and can be read no other way. The language used in the section's last sentence evinces legislative intent that a corporation's complete dissolution be postponed until after judgment is entered in the pending litigation (filed within the statutorily-enunciated temporal window) and is fully executed.

114 The trial court's November 22, 1996 order discharging the court-appointed receiver was not a final order. It neither reached the merits of nor otherwise fully adjudicated the plaintiffs' theories of liability (as set forth in their petition) against law firm nor did it address plaintiffs' then-pending claims against SE Properties or corporation. -It is interlocutory because it did not resolve all of the issues between all of the parties in today's case. Hence, the discharge order was subject to revision at any time before judgment was entered in the case.

115 Today's construction of § 1099's language harmonizes with the legislative intent reflected in the law relative to receiver-ships-Le., 12 00.98.2001 $ 1551 et seq. The common law recognizes that a trial court's appointment of a receiver of a corporation's assets has no direct affect on pending actions against the defendant. In fact these suits often may proceed to judgment without the receiver's participation so long as they do not interfere with the appointing-court's jurisdiction and/or the receiver's possession of the debtor/defendant's res. Ancillary receivership proceedings (such as the one here) do not necessarily address issues raised in the primary litigation which name as a defendant a corporation for which a receiver is later appointed if the issues in the underlying action are not specifically joined in the receivership proceedings. The defendants would have the Court hold that law firm is dissolved (and legally incapable of being a defendant in an action other than the receivership) because the receiver has marshaled and sold the law firm's assets and the sale proceeds have been distributed. To follow this reasoning would in effect place the Court's imprimatur on the concept that once a dissolved corporation becomes judgment proof no action can be maintained against it. This we will not do.

116 The statutory language employed in § 1099's provisions evinces an opposite intent. Based upon the statutory language used the Legislature obviously intended that a corporation's dissolution would not effect abatement of suits pending at the time of or filed within three years of its dissolution date. To read the last sentence of $ 1099 to effectuate an opposite conclusion when a corporation's assets are disposed of through a receivership and the court-appointed receiver is discharged would render the earlier § 1099 language meaningless.

[ 17 The trial court in ruling on plaintiff's motion for summary judgment denied the same as moot but offered no analysis in its order why this is so. Based upon the record the Court assumes the trial court reasoned that law firm was dissolved by the ancillary receivership's conclusion-ie., when the proceeds from the sale of law firm's assets were distributed under the discharge-order's provisions. The trial judge must have reasoned plaintiffs suit could not be maintained against a dissolved corporation under § 1099's provisions once orders emanating from the receivership were fully executed. The receivership's conclusion did not render law firm dissolved under § 1099 terms; it remained viable for purposes of the then pending litigation against it. Hence, the trial court's order denying plaintiffs' motion for summary judgment because of mootness is reversed. Nonetheless, the trial court could have properly denied summary judgment to plaintiffs because there are unresolved questions of material facts relative to: (1) the majority shareholders' (Stewart and Elder) treatment of the minority shareholders (Winston/Ramsey), (2) Stewart and Elder's relationship with law firm and whether they were its alter ego, and (8) law firm's breach of applicable employment contracts and shareholder agreements. Denial of summary judgment for the latter reason does not dispose of plaintiffs' claim against law firm. Winston/Ramsey's claim against law firm remains pending and prevents the complete dissolution of the corporation under § 1099's terms.

IV

THE TRIAL COURTS GRANT OF SUMMARY JUDGMENT TO SE PROPERTIES AND STEWART & ELDER, A PROFESSIONAL CORPORATION [CORPORATION] WAS PROPER AND IS SUSTAINED.

118 The record reflects confusion concerning the plaintiffs' status vis a vis law firm after their termination dates. This confusion is apparent (a) from the face of the plaintiffs' petition and the receiver's discharge order and (b) in the way the plaintiffs and defendants conducted themselves during the interim between severance of the plaintiffs employment relationship with law firm and law firm's dissolution date.

[19 Winston/Ramsey in their petition assert claims for breach of contract occurring after their employment relationship with law firm ended. Plaintiffs also challenge certain acts of law firm relative to SE Properties and Corporation happening after they left law firm. The trial court's order discharging the receiver treats plaintiffs as though they were still law-firm shareholders at the time of its dissolution. Plaintiffs in their brief opposing summary judgment for defendants and also in their brief in support of their motion for summary judgment assert they became law-firm ereditors upon their termination. The Court recognizes that subsumed within plaintiffs assertion that they are lawfirm eredi-tors is an appeal from that provision of the trial court's order (discharging the receiver) which finds they were law-firm shareholders on the date of its dissolution.

120 The plaintiffs' respective termination dates are determinative of their legal status relative to law firm. Under paragraph 2.1 of the respective shareholder agreements plaintiffs were contractually required to surrender their law-firm shares upon termination at a price determined in accordance with shareholder agreement paragraph 8.2's terms. Assuming surrender occurred as contractually required, Winston was neither an employee of nor a shareholder in law firm after July 22, 1994 and the same is true of Ramsey after November 12, 1994. After their severance dates Winston and Ramsey's relationships with law firm are best characterized as that of general creditor to debtor. After their resignation from law firm and the surrender of their stock they could neither hold nor claim entitlement to those shareholder rights which are associated with corporate ownership. Their status as law-firm creditor does not entitle them to assert derivative actions on law firm's behalf, ie., to seek recoupment of payments made by law firm to other creditors. Claims for alleged damage to law firm occasioned by Stewart and Elder's acts occurring after the plaintiffs' termination dates and surrender of shares belong solely to law firm. Lastly, the Court notes that the transactions between law firm and Corporation of which plaintiffs complain and ask Corporation to account transpired after Winston/Ramsey terminated their status as law-firm shareholders. Sans standing to assert a claim on law firm's behalf against other entities, the only remaining basis for the sought-after accounting from Corporation would be actual ownership interests in Corporation. There is no indicia of such ownership in the record. Hence, there is no basis in law upon which an accounting can be ordered of Corporation under the undisputed facts reflected in the record.

1121 Plaintiffs' recoupment claim (for payments made by law firm after Winston/Ramsey's severance ) against SE Properties is likewise a corporate claim belonging to law firm which plaintiffis-as law-firm creditors-cannot assert. There is no allegation in plaintiffs' petition that their action was commenced for the benefit of law firm or its shareholders. The trial court's grants of summary judgment to SE Properties and Corporation are correct and, hence, are sustained.

y

THE TRIAL COURT ERRED IN NOT PERMITTING PLAINTIFFS' AMENDMENT TO THEIR PETITION TO ASSERT ADDITIONAL THEORIES oF LIABILITY AGAINST DEFENDANTS-STEWART AND ELDER.

%22 Plaintiffs moved to amend their petition to assert new theories of liability [alter ego and breach of fiduciary duty] in support of their claim against Stewart and Elder, individually, on July 18, 1998. [Their original petition was filed on September 15, 1995.] As of July 18, 1998 no responsive pleading, i.e., answer, to Winston/Ramsey's original petition had been filed by Stewart and Elder, who sought leave and were allowed to file their answers out of time on September 10, 1998. The trial judge denied plaintiffs' motion to amend. The following analysis of the trial court's denial of plaintiffs' motion to amend its petition accords with the Court of Civil Appeals' earlier decision addressing the same issue.

123 The trial court's procedural rulings require the Court to construe the following provisions of 12 0.9.2001 § 2015(A):

"A party may amend his pleading once as a matter of course at any time before a responsive pleading is served.... Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires...."

Oklahoma Statutes, Title 12, § 2015(A) mirrors Fed.RulesCiv.Proc. Rule 15(A), 28 U.S.C.A. When in its assessment of Oklahoma's procedural regime the Court addresses federally-evolved concepts, we may look to the federal courts for guidance in the interpretation and application of the rule in issue. Hence, federal extant jurisprudence and treatises on the pertinent federal procedure are enlightening in discerning the application which should be accorded § 2015(A)'s language set forth above.

{24 Under the federal Rule 15(A) it is axiomatic that a complaint [the federal equivalent of Oklahoma's petition] may be amended by right at any time before an answer is served. Allowing a party the right to amend by right without the court's permission under the first sentence of § 2015 is consistent with the later language of Section 2015(A) which cireumseribes a party's right to amend "only" with leave of court after a responsive pleading has been filed. It was error under § 2015's provisions for the trial court to deny Winston/Ramsey's amendment of their petition to assert new theories of liability against Stewart and Elder, individually, when defendants had not yet responded to the original petition. The error is even more pronounced here when no trial date had been set as of the time the trial court ruled on the proposed amendment, the plaintiffs' sought-after amendment did not require the joinder of additional parties, and the original petition gave Stewart and Elder notice of the basic facts which plaintiffs were asserting in support of their additional theories of liability being asserted.

VI

SUMMARY

125 Today the Court is called upon to assess the use of summary process to resolve a case which had been on the trial court's docket for almost five years. In our assessment we are extremely mindful that summary adjudication not be invoked except where it serves to eliminate a useless trial. A trial on the merits is always preferred to a trial by affidavit except where all questions of material facts have been resolved.

€26 The defendants' [Stewart and Elder] conduct as majority shareholders of law firm presents questions of fact which remain unresolved by the conclusion of the ancillary receivership. Section 1099's language does not mandate the abatement of pending litigation-such as that here-upon the conclusion of an ancillary receivership unless the claim in issue [in the pending action] is specifically joined as an issue addressed by the receivership proceedings. Where, as here, the unresolved litigation is brought within three years of the corporation's dissolution date, the corporation's complete dissolution is not a fait accompli until that litigation is finished and any judgment entered in the same is fully executed.

1 27 Upon certiorari earlier granted,

THE COURT OF CIVIL APPEALS OPINION IS VACATED; THE TRIAL COURT'S JUDGMENT IS REVERSED IN PART AND AFFIRMED IN PART; AND THE CAUSE REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH TODAY'S PRONOUNCEMENT.

1 28 HARGRAVE, C.J., HODGES, OPALA, KAUGER, SUMMERS and WINCHESTER, JJ., concur.

1 29 BOUDREAU, J., concurs in result.

1 30 WATT, V.C.J., disqualified.

      . There are various employment and stock purchase agreements existing between plaintiffs and law firm. The pertinent ones for purposes of today's case are Winston's employment contract of January 1, 1989 and Ramsey's employment contract of January 1, 1990 and the amended stock purchase agreement, dated January 1, 1990 between plaintiffs [among others] and law firm.

      . Title 18 0.$.2001 § 1099 provides in pertinent part:
      All corporations, whether they expire by their own limitation or are otherwise dissolved, nevertheless shall be continued, for the term of three (3) years from such expiration or dissolution or for such longer period as the district court shall in its discretion direct, bodies corporate for the purpose of prosecuting and defending suits, whether civil, criminal or administrative, by or against them, and of enabling them gradually to settle and close their business, to dispose of and convey their property, to discharge their liabilities, and to distribute to their shareholders any remaining assets, but not for the purpose of continuing the business for which the corporation was organized. With respect to any action, suit, or proceeding begun by or against the corporation either prior to or within three (3) years after the date of its expiration or dissolution, the action shall not abate by reason of the expiration or dissolution of the corporation. The corporation, solely for the purpose of such action, suit or proceeding, shall be continued as a body corporate beyond the three-year period and until any judgments, orders or decrees therein shall be fully executed, without the necessity for any special direction to that effect by the district court. (Emphasis added.]

      . Prudential Ins. Co. of America v. Glass, 1998 OK 52 12, 959 P.2d 586, 588.

      . A fact is material if proof of it would establish or refute an essential element of a cause of action or a defense. Hadnot v. Shaw, 1992 OK 21, 826 P.2d 978, 985.

      . Carmichael v. Beller, 1996 OK 48, 914 P.2d 1051, 1053.

      . Dixon v. Bhuiyan, 2000 OK 56 17, 10 P.3d 888, 890.

      . Post Oak Oil Co. v. Stack & Barnes, 1996 OK 23, 913 P.2d 1311, 1313.

      . Brown v. Okla. State Bank & Trust Co., 1993 OK 117, 860 P.2d 230, 233; Perry v. Green, 1970 OK 70, 468 P.2d 483, 488-89.

      . Spirgis v. Circle K Stores, Inc., 1987 OK CIV APP 45, 743 P.2d 682, 685, cert. denied Oct. 5, 1987 (approved for publication by the Supreme Court}.

      . Seitsinger v. Dockum Pontiac Inc., 1995 OK 29, 894 P.2d 1077, 1079

      . Hadnot, supra note 4 at 987.

      . Glass, supra note 3 at 588-89; Martin v. Chapel, Wilkinson, Riggs, and Abney et al., 1981 OK 134, 637 P.2d 81, 84.

      . Sullins v. American Medical Response of Okla., Inc., 2001 OK 20, ¶ 17, 23 P.3d 259, 263.

      . Sullins, supra note 13, 2001 OK at ¶ 17, 23 P.3d at 263; Community Bankers Ass'n. of Okla. v. Okla. State Banking Bd., 1999 OK 24, ¶ 26, 979 P.2d 751, 757.

      . Knight v. Ford, 1994 OK 74, 877 P.2d 602, 604.

      . Ledbetter v. Okla. Alcoholic Bev. Laws Enforcement Com'n., 1988 OK 117, 764 P.2d 172, 179.

      . Haney v. State of Okla., 1993 OK 41, 850 P.2d 1087, 1089.

      . Patmon v. Block, 1993 OK 53, 851 P.2d 539, 543.

      . Rater Ewinc A Treatise on tas Law anp Practice or Receivers § 610 (3rd ed.1959).

      . Id.

      . Defendants reason in their appellate paperwork that even if the discharge order was not final when rendered, the same was made final and appealable by the trial court's April 18, 2000 order denying plaintiffs' motion for summary judgment. As earlier recognized by the Court's September 25, 2000 order the latter is correct. It was on April 18, 2000 that appeal-time as to the discharge order began. Dotson v. Rainbolt, 1992 OK 101, 835 P.2d 870.
      Our reasoning about the discharge-order's ap-pealability does not affront our conclusion that the receivership did not reach the merits of plaintiffs' claims against law firm and Stewart and Elder, as individuals, as raised in plaintiffs' petition. The trial court's April 18, 2000 order is accorded finality within the meaning of 12 0.8. 2001 § 953 not because it reached the merits of Winston/Ramsey's claims as asserted in their petition but rather because it conclusively determined the disputed question then before the trial court and left plaintiffs without any relief at the trial court's instance-ie., denial of plaintiffs' motion for summary judgment as "moot" precluded them from proceeding further in the case. Hammonds v. Osteopathic Hospital Founders Ass'n., 1996 OK 54, 917 P.2d 6, 7.

      . Cooke v. Tankersley, 1948 OK 23, 189 P.2d 417, 419.

      . The record indicates that payments made to SE Properties were rental payments for the space occupied by law firm. There is no indication in the materials submitted that the monies paid to SE Properties were not due and owing or were otherwise fraudulent. Plaintiffs' arguments regarding SE Properties more closely relate to their allegation that Stewart and Elder were the alter ego of law firm or at a minimum were conducting law firm's business to benefit themselves as opposed to other law-firm creditors.

      . The only defendant who had answered plaintiffs' complaint was law firm.

      . In later ruling on plaintiffs' motion to reconsider the denial of amendment, the trial court noted that allowing amendment would "unduly delay the final resolution of this case which is over three years old."

      . [See 12 0.$.2001 § 2007 for identification of what constitutes a pleading.]

      . See 12 O.S.2001, Ch. 39 Oklahoma Pleading Code, Intro. Com. Comment ("Application of the Oklahoma Pleading Code in Oklahoma state courts will be facilitated by reference to the appellate decisions from federal and state courts construing the Federal Rules.... Where the text of the Federal Rules has been adopted in the Oklahoma Pleading Code, the construction placed on it by federal and state courts should be presumed to have been adopted as well. Laubach v. Morgan, 1978 OK 5, 588 P.2d 1071, 1073").

      . See Wricut and Miller, 6 Fed. Prac. & Proc. Civ.2d § 1483. See also Washington v. N.Y.City Bd. of Estimate, 709 F.2d 792, 795 (2d Cir.1983); City Bank v. Glenn Construction Corp., 68 F.R.D. 511, 513 (U.S. District Court, D. Hawaii 1975). Lastly, see DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir.1987), where the court held that delay, by itself, is insufficient to justify denial of leave to amend.

      . The Court is cognizant of plaintiffs' deposition testimony about whether they would assert additional theories of liability seeking to impose individual liability on Stewart and Elder. Nonetheless, defendants have failed to show they would be unduly prejudiced, even though it is possible they may have to conduct additional discovery.


source: Caselaw Access Project

author: SUMMERS, J. I 44 WINCHESTER, J.,

license: Public Domain

text:
    2002 OK 71
    OKLAHOMA PUBLIC EMPLOYEES ASSOCIATION, Billy D. & Earlene Melton, Paul Benefied, Oris D. Davis, Richard C. Jackson, Sr., Helen L. Jackson, Dwain E. Kelley, Roy E. Mitchell, Allena E. Harms, Kathryn Reinauer Freeman, Coleen Patterson, Betty Bennan, Linda Turner, Fredetta Jones, Richard F. Buck, Betty Jo Whinnery, Joyce Brown, Pauline V. Terry, Pamela G. Weaver, Kenneth Eugene & Bonnie J. Johnson, Plaintiffs/Appellees, v. OKLAHOMA DEPARTMENT OF CENTRAL SERVICES, Tom Jaworsky, State Purchasing Director for the Oklahoma Department of Central Services, and Oklahoma Department of Human Services, Defendents/Appellants, v. Stratton Taylor, President Pro Tempore of the Oklahoma Senate, Amicus Curiae.
    No. 94,985.
    Supreme Court of Oklahoma.
    Sept. 24, 2002.

      Richard W. Freeman, Ir., Assistant General Counsel, DHS, and John J. Ely, Jr., Assistant General Counsel, DHS, Oklahoma City, OK, for Defendant/Appellant Oklahoma Department of Human Services.
    Joseph Walters and John D. Stiner, MceAf-fee & Taft, Oklahoma City, OK, for Defendants/Appellants Oklahoma Department of Central Services and Tom Jaworksky.
    Richard A. Mildren and Catherine Napier, Riggs, Abney, Neal, Turpen, Orbison & Lewis, Oklahoma City, OK, for Plaintiff/Appellee Oklahoma Public Employees Association.
    Stratton Taylor, President Pro Tempore of Oklahoma Senate, Oklahoma City, Oklahoma, Amicus Curiae/Appellee, Pro se.
   SUMMERS, J.

T1 In this case we address whether the Department of Human Services (DHS) is limited to express statutory or constitutional authority for determining its authority to enter into certain contracts. We determine that when express contractual authority is not granted DHS possesses those implied contractual powers that are necessary for the effective discharge of the duties expressly conferred upon DHS. We also conclude that Plaintiffs, as taxpayers, possess standing to challenge an alleged unlawful expenditure of public funds. We affirm the trial court's determination of taxpayer standing, but reverse the summary judgment, because it was based upon the idea that a contractual authority or power would not exist in the absence of authority expressly granting such authority. Motions by DHS, Department of Central Services, and Tom Jaworsky for oral argument are denied.

12 DHS decided to outsource the management of Robert M. Greer Center Facility (Greer) located in Enid. DHS requested that the Oklahoma Department of Central Services (Central Services) solicit offers for management contracts, whereupon Central Services selected Liberty of Oklahoma Corporation (Liberty) for the management of Greer Center. One contract was awarded to Liberty for one sixty-day period effective November 30, 1999, and an additional contract to run one year through January 31, 2001, with options to renew for nine additional one-year periods.

13 The plan for managing Greer Center included removing the state employees at those centers from the state payroll, with the successful bidder then hiring those same employees for a period of no less than six months. To implement the outsourcing DHS decided to reduce the total number of state employees at Greer, and thereby decrease the number of employees the suceessful bidder would be required to hire. DHS obtained permission from the Office of State Finance to offer employees a statutory benefit package for those deciding to voluntarily terminate their state employment prior to the outsourcing. See 74 O.8.Supp.1999 § 840-2.28.

T4 Another facility of DHS is the Northern Oklahoma Resource Center of Enid (NORCE)], located on the same property as Greer. The contract with Liberty includes a provision that "food and related supplies" will be obtained by "NORCE staff" "via utilization of state contracts"; that is, that the food and related supplies will be provided by DHS (NORCE)] to Liberty. A similar contractual provision requires DHS to provide pharmaceutical and medical supplies. They are to be "procured by the Agency, by NORCE staff via utilization of state contracts and provided to the Contractor [Liberty] via the Shared Goods and Services Agreement...."

15 Plaintiffs, the Oklahoma Public Employees Association (OPEA) and several individuals, brought suit in the District Court seeking a permanent injunction against implementation of the management contract, and they also sought a declaratory judgment on the lawfulness of outsourcing and the Shared Goods and Services Agreement. Both sides sought summary judgment, and the trial court ruled in favor of Plaintiffs. The court concluded that Plaintiffs had standing, and that the outsourcing was improper because the Legislature had not specifically authorized DHS to outsource the Greer Center. The District Court stayed the effect of its decision pending an appeal. DHS and Central Services appealed and we retained the controversy.

I. Standing of the OPEA

16 The trial court granted summary judgment against Central Services and DHS. Summary judgment is an adjudication on the merits of the controversy. Union Oil Co. of California v. Board of Equalization of Beckham County, 1996 OK 40, 913 P.2d 1830, 1333. It is appropriate "where there is no dispute as to the material facts or as to the inferences to be drawn from undisputed facts, and the law favors the movant's claim or liability-defeating defense." Harkrider v. Posey, 2000 OK 94, 8, 24 P.3d 821, 824-825. When the facts are not in dispute a plaintiff's standing may adjudicated on a motion for summary judgment. Beville v. Curry, 2001 OK 1, 1 9, 39 P.3d 754, 758; Herring v. State ex rel. Oklahoma Tax Commission, 1995 OK 28, 894 P.2d 1074, 1076. No facts are in dispute relevant to the standing of the OPEA.

17 DHS and Central Services argue that OPEA and the individual plaintiffs lack standing to bring the suit. OPEA includes members who are taxpayer/residents and employees at the Greer Center. We address first the standing of the OPEA,

18 OPEA argues that it has standing if Respondents violated state statutes or public agency rules, because such violations are injuries to the State and its citizens. OPEA further argues that a taxpayer has standing to challenge the illegal creation of a public debt or the illegal expenditure of public funds, and that the proposed action of the Defendants created such debt and expenditure. OPEA further asserts that its members are citizens and taxpayers. OPEA cites Independent School Dist. No. 9 v. Glass, 1982 OK 2, 689 P.2d 1238, 1237, for the proposition that "A violation of a state statute is an injury to the State and its citizens." OPEA states that its members are citizens, that a violation of a statute has occurred, and it thus has standing.

T9 We have said that an association possesses standing to seek relief on behalf of its members. Independent Finance Institute v. Clark, 1999 OK 43, n. 7, 990 P.2d 845, 849. In Independent Finance Institute we relied upon Private Truck Council of America, Inc., v. Oklahoma Tax Commission, 1990 OK 54, 131, 806 P.2d 598, 607, vacated and remanded on other grounds by National Private Truck Council, Inc. v. Oklahoma Tax Commission, 501 U.S. 1247, 111 S.Ct. 2882, 115 L.Ed.2d 1048 (1991), and we explained that an association's standing was based, in part, upon an injury to a right possessed by a member of the association:

The Supreme Court of the United States "has recognized that an association may have standing to assert the claims of its members even where it has suffered no injury from the challenged activity." In determining whether an association has standing, the United States Supreme Court has:
recognized that an association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.

Private Truck Council of America, Inc., 1990 OK 54, 806 P.2d at 607.

Thus an association's standing is based upon members of that association possessing standing to sue in their own right. Do members of the OPEA possess standing? We conclude that they do.

{10 The standing of the OPEA is based in this case on the status of its members as taxpayers challenging an alleged illegal expenditure of public funds. Four years before Statehood this Court examined opinions in different jurisdictions, and concluded that a taxpayer should be allowed to seek relief in a court of equity to challenge illegal taxation or illegal expenditure of public funds. Kellogg v. School Dist. No. 10 of Comanche County, 1903 OK 81, 74 P. 110, 116. We have followed this conclusion in subsequent years. See eg., Thompson v. Haskell, 1909 OK 140, 102 P. 700, 704; Airy v. Thompson, 1931 OK 770, 6 P.2d 445, 447-448; Payne v. Jones, 1944 OK 86, 146 P.2d 113, 117; Brandon v. Ashworth, 1998 OK 20, 955 P.2d 233, 235; Quinn v. City of Tulsa, 1989 OK 112, 777 P.2d 1331, 1340. Thus, a taxpayer possesses standing to seek equitable relief when alleging that a violation of a statute will result in an illegal expenditure of public funds or the imposition of an illegal tax.

[11 DHS states that taxpayers may bring suit against a municipal corporation, but not an agency of State government. This Court addressed this argument at length in Vette v. Childers, 1924 OK 190, 228 P. 145, where we explained that the principle in Kellogg applied to taxpayers seeking to challenge the unlawful or unconstitutional expenditure of state funds.

Thompson et al. v. Haskell, Governor, supra, [1909 OK 140, 24 Okla. 70, 102 P. 700] therefore, does not support the contention of the defendants in error, and the rule announced in the Kellogg Case has never been overruled.... We are of the opinion that the correct rule is announced in Fergus v. Russel, 270 Ill. 304, 110 N.E. 130, Ann.Cas. 1916B, 1120, in the first syllabus, as follows:
"Because of their equitable ownership of the funds in the state treasury, and their liability to replenish the treasury for a deficiency which would be caused by a misappropriation, taxpayers may maintain a bill in equity to restrain the payment from the state treasury of moneys appropriated by the General Assembly on the ground that such appropriations are unconstitutional; there being no distinction between suits to restrain the payment of funds from a municipal treasury and a suit to restrain payments from the state treasury, as a municipality, in exercising the delegated authority to raise funds by taxation, is exercising a part of the power of the state, and the sovereignty of the state is no less involved, except in degree, in a taxpayer's suit to enjoin the misappropriation of the funds of a municipality than in a suit to enjoin the misappropriation of the public funds in the state treasury."
The unlawful appropriation of public funds is an invasion of the legal rights of a taxpayer, and a suit may be maintained to restrain the expenditure of funds under an unlawful appropriation, without waiting for the state officers to take further steps toward the expenditure of the funds appropriated.

Vette v. Childers, 1924 OK 190, 228 P. 145, 146, (citation and emphasis added).

Respondents' argument limiting the scope of Kellogg to non-State governmental entities is without merit.

{12 DHS states that the interests of the members of the OPEA are common to the population at large, and the members should not possess standing to challenge the acts of state officials. It is certainly true that in some circumstances where a state statute is violated the plaintiff, regardless of taxpayer status, must seek relief for an injury specific to that individual that is not shared with the public at large. For example, some of our opinions discuss standing where taxpayers allege a violation of a state statute, but they do mot also allege am illegal tax or public expenditure.

1183 In Bird v. Willis, 1996 OK 116, 927 P.2d 547, where a citizen claimed that a state official violated a statute when issuing a liquor license to another individual, we said with regard to the plaintiff's standing that "an individual must have a particular interest of his own, independent of that interest which he may hold in common with other people." Id. 927 P.2d at 552. Accord, Macy v. Oklahoma City School Dist. No. 89, 1998 OK 58, 114, 961 P.2d 804, 807, (taxpayers could not, as taxpayers, bring a declaratory judgment to invalidate an election). Cf. Toxic Waste Impact Group, Inc. v. Leavitt, 1994 OK 148, 890 P.2d 906, 914, (cause remanded to trial court for an adjudication of plaintiff's standing based upon a showing that plaintiffs were aggrieved and injured by the challenged governmental action). .

114 In addressing plaintiffs' standing as taxpayers, in McFarland v. Atkins, 1979 OK 3, 594 P.2d 758, we explained that they could not successfully bring the suit where the Department of Health had express statutory authority to contract with a non-governmental agency to provide certain services. Id. 594 P.2d at 762. Similarly, we recently indicated that a taxpayer's standing in an election contest is different from that of a taxpayer's standing when challenging an illegal tax in an equitable proceeding. Macy, 1998 OK 58, 1 23, 961 P.2d at 810. These opinions show a distinction we made many years past in Town of Afton v. Gill, 1916 OK 398, 156 P. 658.

In Thompson v. Haskell, 24 Okl. 70, 102 Pac. 700, this court made the limitation of the rule clear. It was there held that the rule does not permit private individuals to restrain public officials to correct purely public wrongs, but restricts the right of a private individual to that class of cases which involves the creation of debts illegally against, or the wrongful expenditure of the moneys of, the taxpayers.

Town of Afton v. Gill, 1916 OK 393, 156 P. 658, 661, explaining, Thompson v. Haskell, 1909 OK 140, 102 Pac. 700.

Likewise, in Payne v. Jones, supra, we said.

We are committed to the rules that a resident taxpayer, although he shows no special or private interest, may maintain an action to enjoin the illegal creation of a public debt or an illegal expenditure of public funds (Syllabus by the court) Id. at 115, 117.

In sum, the members of the OPEA, as taxpayers, possess standing to challenge an alleged wrongful expenditure of public funds, and thus, the OPEA possesses standing to seek injunctive relief to prevent an alleged unlawful expenditure of those funds.

II. Standing of Individuals

115 DHS and Central Services further argue that the non-OPEA-members as individuals lack standing to bring the suit. The individuals are family members, guardians, or parents of residents at Greer Center. First, we note that "The voluntary placement of a child in an institution for the mentally retarded by the child's parents shall not, by itself, abrogate the rights and authority of the parents." 10 0.$.1991 § 1415(A). Further, in facilities operated by the Department of Human Services all residents of institutions for the mentally retarded "who are eighteen (18) years of age or older shall have a guardian appointed by a court." Id. at § 1415(B). However, in some cases after an assessment is performed the appointment of a guardian is not warranted and a guardian is not appointed. Id. at § 1415(C). DHS does not challenge the status of the parents and guardians as proper representatives of the residents of Greer.

T 16 DHS states that the individuals do not possess standing because (1) they have not demonstrated that any resident has suffered an actual or imminent injury in fact; (2) they have not demonstrated an injury to themselves; and (8) taxpayer status is insufficient. We have stated the following:

A party whose standing is challenged must show (1) actual or threatened injury, (2) for which relief can be given, and (8) the interest to be protected is "within a statutorily or constitutionally protected zone". In re Initiative Petition No. 363, 1996 OK 122, 113 n. 29, 927 P.2d 558, 565 n. 29. The interest must be "direct, immediate and substantial". Underside v. Lathrop, 1982 OK 57, T 7, 645 P.2d 514, 517.

Brandon v. Ashworth, 1998 OK 20, T6, 955 P.2d 233, 235.

In applying this standard we have explained that a suit may be brought challenging the legality of government action, or inaction, and if the plaintiff is the object of the action at issue, "there is ordinarily little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it." Toxic Waste Impact Group, Inc. v. Leavitt, 1994 OK 148, 890 P.2d 906, 912. Further, "there [must be} some causal connection between the alleged injury and the actions being challenged." Herring v. State ex rel. Oklahoma Tax Commission, 1995 OK 28, 894 P.2d 1074, 1076, quoting, Seal v. Corporation Commission, 1986 OK 34, 725 P.2d 278, 288, appeal dismissed sub nom., Amerada Hess Corp. v. Corporation Commission, 479 U.S. 1073, 107 S.Ct. 1265, 94 L.Ed.2d 126 (1987).

117 The first challenge by Defendants states that the residents of the Greer Center have not, and will not, suffer an injury. Parents and guardians alleged that the non-government entity selected to operate the Greer Center, Liberty Healthcare, would not be able to operate the Center without additional staff and employees. They alleged that the additional staff that would probably be selected from employees employed at NORCE. They also alleged that these employees "may not be adequately trained or skilled to provide the care necessary to residents of the Greer Center who, unlike NORCE residents, are dually diagnosed."

T18 DHS responded to the motion for summary judgment, and stated that the quality of care for the residents would remain in the control of DHS. DHS pointed to the following provisions of its final agreement:

1. DHS has the sole authority to discharge or admit residents, and Liberty must accept all DHS referrals.
2. DHS' Office of Client Advocacy is in charge of all residents' disputes, and actions in response to investigations must be approved by DHS.
8. DHS has the right to request the termination of any employee at Greer Center; Liberty must give DHS two weeks notice before replacing any key member of the Greer Center Staff.
4. DHS may immediately terminate the contract if it determines that the health and/or safety of any resident is endangered by the actions or inactions of Liberty.
5. All payments, including federal funds, third party payments, and payments from residents for Greer Center are the property of DHS.
6. DHS holds the Intermediate Care Facility for the Mentally Retarded License for Greer Center.
7. Liberty must operate the facility in accordance with the established policies of DHS and the Developmental Disabilities Service Division. 8. DHS continues to own the realty, facilities, equipment, and furniture of Greer Center.
9. The general maintenance of the facilities rests with DHS.
10. DHS shall have full and free access to observe and inspect Liberty's operation of the Greer Center at any time, without notice.

Response, at 12, citations to contract omitted.

In sum, Plaintiffs' motion for summary judgment alleged that the care of the residents may suffer because of the agreement, and DHS responded stating that it would monitor the care of the residents for the purpose of fulfilling its obligation to provide for the health and welfare of the residents, Le., that the care of the residents would not suffer. Plaintiffs replied to Defendants' response, but did not discuss the quality of care to be received by the residents.

19 The summary judgment process does not reveal any facts in support of the proposition that the care of the residents of Greer Center would suffer as a result of the outsourcing agreement. Plaintiffs do not point to any such facts in their appellate briefs. The parties have not identified any particular medically recognized standard of treatment that the DHS has, or will, fall short of in delivering treatment to the residents under the contract with Liberty. Further, the parties do not articulate any legal duty or standard of conduct specifically on the degree of care required by DHS in providing for the residents.

120 An injunction is used to prevent future misconduct, but an injunction should be denied when the expectation of future wrongdoing is too speculative to form the basis for issuing an injunction. Quinn v. City of Tulsa, 1989 OK 112, 777 P.2d 1331, 1341. Accord, Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 190, 120 S.Ct. 698, 145 L.Ed.2d 610 (2000), discussing, Los Angeles v. Lyons, 461 U.S. 95, 108 S.Ct. 1660, 75 L.Ed.2d 675 (1983), (there are cireumstances in which the prospect that a defendant will engage in harmful conduct may be too speculative to support standing for injunctive relief). Defendants suggest that any claim of injury is speculative.

121 In Toxic Waste Impact Group, Inc. v. Leavitt, 1994 OK 148, 890 P.2d 906, we required the trial court to determine standing after the cause was remanded to that court. The record on appeal here does not show any adjudication on the specific standing claim of the parents and guardians that injury would occur to the residents. Further, nothing in the record on appeal shows any adjudication on Defendants' assertions that the claim of injury is speculative. The party invoking a court's jurisdiction has the burden of establishing his or her standing (when contested) to pursue the action in court. Toxic Waste Impact Group, Inc. v. Leavitt, 1994 OK 148, 890 P.2d 906, 910. Whether this burden is met must first be determined by the District Court This Court will not exercise its appellate jurisdiction to make first instance determinations on disputed questions of fact or law. Martin v. Johnson, 1998 OK 127, 975 P.2d 889, 897. The trial court's judgment determining the standing of the parents and guardians, to the extent that it rests upon a disputed allegation of injury to the residents, cannot stand and must be reversed. Because the trial court did not previously adjudicate the standing of the parties based upon an allegation of injury to the residents, the parties may assert, and the trial court may adjudicate, such standing upon remand. Toxic Waste Impact Group, Inc. v. Leavitt, supra.

III. Authority of DHS

122 The Oklahoma Department of Central Services selected Liberty of Oklahoma Corporation to manage the Greer Center. Does the Department of Human Services possess the authority to outsource or privatize the operation of Greer Center notwithstanding a lack of specific contractual authority to outsource? DHS need not have specific authority if such outsourcing is necessary to perform its statutory duty to operate Greer Center.

123 The Oklahoma Constitution provides that "the Legislature and the people by initiative petition are hereby authorized to provide by appropriate legislation for the relief and care of needy aged persons who are unable to provide for themselves, and other needy persons who, on account of immature age, physical infirmity, disability, or other cause, are unable to provide or care for themselves;. ..." Okla. Const. Art. 25 § 1. Our Constitution also specifies that the Department of Public Welfare (now Department of Human Services) has the function of administering and carrying into execution all laws enacted by the Legislature and the People. Okla. Const. Art. 25 § 2. These provisions state that legislative power resides in the Legislature and the People, and DHS must execute those laws created by either the Legislature or the People.

124 DHS argues that it possesses the constitutional authority to formulate specific policies on how it will perform those duties assigned to it by the Legislature and the People. DHS relies upon Okla. Const. Art. 25 § 4. It points to the constitutional language stating that: "The Commission shall formulate the policies, and adopt rules and regulations for the effective administration of the duties of the Department." The constitutional power to formulate policies resides in the Commission for Human Services and not the Department of Human Services. The Commission may exercise a legislative power to formulate a policy while the Director of the Department exercises executive and administrative duties imposed upon the Department. Okla. Const. Art. 25 § 4. The Oklahoma Administrative Code (O.A.C.) states that "The Commission is responsible for formulating Department Policies and adopting rules and regulations for the effective administration of programs under the jurisdiction of the Department." O.A.C. 340:1-1-3(b) (1996). In summary, the Legislature and the People define the duties of the Department, Okla. Const. Art. 25 § 1, the Department carries out those duties, Okla. Const. Art. 25 § 1, the Commission creates policies and rules for the Department to carry out the duties of the Department, Okla. Const. Art. 25 § 4, and the Director possesses executive and administrative power to implement the policies and rules created by the Commission.

125 DHS argues that Art. 25 § 4 vests DHS (or the Commission) with legislative power apart from the Legislature or the people, and that this power includes the ability to perform certain acts not granted by the Legislature. The policies, rules, and regulations for DHS are for the administration of the duties of the Department. We said in City of Sand Springs v. Department of Public Welfare, 1980 OK 86, 608 P.2d 1189, "This mandatory constitutional requirement that the Commission formulate policies for the effective administration of its duties is indicative of a constitutional mandate from the people to the Commission to legislate . when necessary to accomplish effectively the duties imposed upon the body." Id. 608 P.2d at 1146. Public officials and agencies possess those powers granted by law, by constitution or statute, and those officials and agencies cannot expand those powers by their own authority. See Marley v. Cannon, 1980 OK 147, 618 P.2d 401, where we said that an "agency created by statute may only exercise those powers granted by statute and cannot expand those powers by its own authority." Id. 618 P.2d at 405. The duties of the Department are not created by DHS, but by the People and the Legislature, Okla. Const. Art. 25 § 1, and implemented in accordance with the rules of the Commission, Okla. Const. Art. 25 § 4.

126 DHS further argues that while the Legislature may determine that caring for these children is a duty of DHS, the decision of how DHS cares for them, either through employees or independent contractors, is a decision made by DHS. DHS relies upon City of Sand Springs v. Department of Public Welfare, supra, where one issue was whether DHS had authority to build an institution. We first determined whether DHS had statutory authority to build a detention facility on the grounds of an institution operated by DHS. We noted that a statute gave express authority to DHS for "capital outlay", that this Court had previously equated "capital expenditure" with "capital outlay", and that "[the language of the statute ... clearly authorizes the Commission to construct a capital improvement whenever the Commission finds the improvement necessary for the discharge of its responsibilities imposed by statute." Id. 608 P.2d at 1144. We then discussed a legislative function of the Commission (and thus DHS) contained in Art. 25 § 4:

This mandatory constitutional requirement that the Commission formulate poli-cles for the effective administration of its duties is indicative of a constitutional mandate from the people to the Commission to legislate when necessary to accomplish effectively the duties imposed upon the body. This Court has committed itself to the proposition that the essence of the legislative function is the determination of policy; indeed, the dichotomy between administrative acts and legislative acts hinges upon the declaration of policy, which is a legislative function, and the implementation of that policy, which is traditionally an administrative function. See Wells v. Childers, 196 Okl. 353, 165 P.2d 871 (1945), School District # 25 of Woods County v. Hodge, 199 Okl. 81, 183 P.2d 575 (1947), State ex rel. and Hart v. Parham, supra [412 P.2d 142 (Okla.1966)]. Under Article XXV, Section 4 of this State's Constitution, the only limitation upon the Commission's rule-making ability is that they be made in furtherance of the department's duties as provided by law.
We are therefore constrained to hold the people of the State of Oklahoma, by passing Article XXV §§ 2 and 4 at a Constitutional referendum vote, have removed the prohibition against delegation of legislative authority to the Welfare Department. The remaining criteria by which to measure the authority of the Commission to act is: Was the questioned action in furtherance of the Department's duties as provided in Oklahoma Constitution, Article XXV § 4: "The Commission shall formulate the policies, and adopt rules and regulations for the effective administration of the duties of the Department."? Was the decision to construct the institution done in furtherance of a duty placed upon the Department?

Id. 1980 OK 36, at TT 12-18, 608 P.2d at 1146, emphasis added.

We then noted that DHS had a statutory duty to "shelter" certain children, and that the construction was for this purpose. The construction was designed to fulfill a statutory duty. Id. 608 P.2d at 1147. The construction was a lawful exercise of power by the Commission because it was "necessary to accomplish effectively the duties imposed upon the body [the Commission]." Id. 608 P.2d at 1147.

T27 Public officers possess only such authority as is granted by law, and that authority must be exercised in the manner provided by law. Tulsa Exposition & Fair Corp. v. Board of County Commissioners of Tulsa County, 1970 OK 67, 468 P.2d 501, 507-508; Brown v. State Election Bd., 1962 OK 36, 369 P.2d 140, 144. We recognize that generally, an officer or agency has, by implication and in addition to the powers expressly given by Constitution or statute, such powers as are necessary for the due and efficient exercise of the powers expressly granted, or such as may be fairly implied from the constitutional provision or statute granting the express powers. Marley v. Cannon, 1980 OK 147, 110, 618 P.2d 401, 405, (necessary powers are implied from express power granted by statute); HF. Wilcox Oil & Gas Co. v. Walker, 1934 OK 280, 32 P.2d 1044, 1046, (authority of the Corporation Commission is limited to the power expressly or by necessary implication granted to it by the Constitution and the statutes).

T28 In Oklahoma City v. State ex rel. Marland, 1944 OK 37, 145 P.2d 418, we explained that:

We are of the opinion that under the express powers granted by the constitution and pertinent statutes relating to the sale and disposal of public lands, the platting of the same for townsites or additions to towns and the sale of town lots, there was necessarily implied the power to lay out streets, and alleys, and parkways, to dedicate to public use an easement for such purposes. Insofar as streets and alleys are concerned, it is necessary that such be provided or townsites or additions to towns would not be practicable or even possible.

Oklahoma City v. State ex rel. Marland, 145 P.2d at 420, (emphasis added).

These opinions tell us to examine relevant express and implied authority to determine if the challenged conduct is permitted. This is what we did in City of Sand Springs when we noted the express statutory authority for DHS to make capital expenditures, and the implied authority of DHS to perform that which was necessary to accomplish effectively the duties expressly imposed upon the Commission. City of Sand Springs, 608 P.2d at 1144, 1147.

129 DHS is statutorily charged with the responsibility of operating NORCE. 10 0.8.8upp.1992 §§ 1406, 1409. This duty may not be re-delegated by DHS to some other entity. The applicable maxim is delegate potestas mon potest delegari, delegated authority cannot be re-delegated. Bushert v. Hughes, 1996 OK 21, 912 P.2d 334, 339; State ex rel. Oklahoma Bar Association v. Livshee, 1994 OK 12, n. 13, 870 P.2d 770, 773. We previously observed that DHS: 1. discharges and admits patients, 2. is in charge of residents' disputes, 8. may cause the termination of employees, 4. may terminate the contract if the health or safety of residents is endangered by Liberty, 5. owns certain payments, 6. holds the license for the facility, and 7. continues to own and provide general maintenance for the facility.

1130 Two characteristics of the contractual arrangement are important: 1. Liberty must operate the facility in accordance with the established policies of DHS and the Developmental Disabilities Service Division, and 2. DHS shall have full and free access to observe and inspect Liberty's operation of the Greer Center at any time, without notice. DHS cannot re-delegate its statutory duty of operating the facility to another, and thus DHS must have established policies for Liberty's management to follow so that DHS performs its statutory duty through the acts of Liberty and Liberty's employees. The creation of those policies by DHS and the exercise of the power to observe and inspect Liberty for compliance with those policies is required to prevent DHS from delegating its statutory duty to Liberty.

131 The Commission possesses a general constitutional authority to adopt rules for the duties imposed on the Department, and a specific statutory authorization and direction to "to promulgate and adopt all rules and regulations necessary to carry out the provisions of this act." 10 0.8.1991 § 1411(3). The Greer Center Facility is located on the grounds of NORCE in Enid, is a separate entity from NORCE, and the statute provides additional eriteria for a person's admission, evaluation and assessment, and discharge procedure. 10 0.8.8upp.1997 § 1414.1 The Commission for Human Services is "authorized and hereby directed to promulgate and amend rules necessary to implement the provisions of this section." Id. at § 1414.1(J).

$382 The Legislature formulates and then expresses policy of the State via its written legislative enactments. Stewart v. Harris 1967 OK 223, 434 P.2d 902, 905; State v. Mathews, 1928 OK 751, 273 P. 352, 358. The Commission possesses a constitutionally granted legislative power to formulate a policy and declare or express it via its written enactments in the form of rules for the Department. See City of Sand Springs v. Department of Public Welfare, 608 P.2d at 1146, where we said that "This Court has committed itself to the proposition that the essence of the legislative function is the determination of policy; indeed, the dichotomy between administrative acts and legislative acts hinges upon the declaration of policy, which is a legislative function, and the implementation of that policy, which is traditionally an administrative function." No party points to any rule promulgated by the Commission (or DHS) relevant to outsourcing management at institutions placed under the authority of DHS by the Legislature. DHS states that no rule is needed because its decision to outsource is an internal management decision.

133 DHS relies upon City of Sand Springs v. Department of Public Welfare, swpra, for the proposition that "decisions like the one made in Sand Springs" ... "need not be made pursuant to the formal rulemak-ing procedures of the APA." In City of Sand Springs we relied upon former 75 O.S.1971 § 301 for the proposition that not every decision made by the DHS must be in the form of a rule because a "rule" does not include "statements concerning only the internal management of an agency and not affecting private rights...." City of Sand Springs, 608 P.2d at 1152. Similar language was in the Administrative Procedures Act at the time the contract with Liberty was created. We agree that 75 O.S.Supp.1999 § 250.3 does not require every agency decision to be in the form of a rule. But an exercise of power by an ageney must be pursuant to either an express or implied power granted by law. Tulsa Exposition & Fair Corp. v. Board of County Commissioners of Tulsa County, supra; Brown v. State Election Bd., supra.

34 The Director of the Department possesses constitutional authority to employ personnel and set standards for that employment. No one in this controversy disputes that authority. Nor does anyone question the authority of a state ageney to curtail the employment of individuals from that agency, or to abolish particular or individual employment positions in a state agency. A state agency possesses the authority to decrease the number of employees employed at that agency and remove employment positions by using the State Government Reduction in Force and Severance Benefit Act. 74 O.S.Supp.1997 § 840-2.27A § 840-2.27H. The record on appeal states that employees were provided a statutory benefit package for those deciding to voluntarily terminate their state employment prior to the outsourcing. See 74 O.S.Supp.1999 § 840-2.28. Clearly, a state agency may reduce the number of its employees.

185 May a state agency exercise internal management discretion and determine to perform its constitutional or statutory duty using an independent contractor? Again, the answer depends upon whether the - agency possesses express or implied authority to make such a decision in a particular circumstance. Generally, the Oklahoma Legislature bas anticipated that a state agency may use an independent contractor to provide services to a state agency. The Oklahoma Legislature adopted the Central Purchasing Act, 74 0.$.1991, § 85.1 et seq., as amended, to govern the expenditures of the various governmental agencies in acquiring goods or services, and unless exempted by the Legislature, the Act applies to DHS. Indiana Nat. Bank v. State Dept. of Human Services, 1998 OK 101, 857 P.2d 53, 60, 63-64. That. Act provides procedures for a state agency's acquisition of items, products, supplies, services, or equipment. 74 0.8.Supp. 1999 § 85.2(A), (emphasis added).

136 Plaintiffs argue that DHS may not outsource the management of its institutions unless a statute specifically grants that authority. They argue that the Legislature has given such authority to certain agencies, but not to DHS for managing these institutions. NORCE and the Greer Center are institutions that were transferred to the control of DHS from the Board of Mental Health and Substance Abuse Services, and contracts made by that Board were binding upon DHS. 10 0.8.1991 $ 1410. While § 1411 provides authorization for the expenditure of funds for certain broad categories, such as repair of buildings, "land and other capital outlay," none of the statutes relating specifically to NORCE and Greer contain language vesting contractual powers in DHS for administering these institutions. The Legislature has thus not given DHS specific contractual authority for every duty the Legislature has given to DHS. Thus contractual authority itself must be necessarily implied from the nature of the duty given to DHS. Marley v. Canmon, swpra.

T37 The Legislature has recognized certain contractual powers of DHS by focusing "upon the terms of contracts that DHS enters into. For example, when DHS contracts pursuant to the State Medicaid Plan with facilities that provide certain inpatient or residential mental health services the Legislature has required such contracts to contain specific provisions. 56 O.S.Supp.1992 § 2200. Further, the Legislature has recognized that DHS does contract for services in some instances, as when the Legislature makes statutory requirements for settling claims based upon such contracts. 56 O.S.Supp.1992 § 225.1.

The Legislature has given DHS the duty of administering NORCE and the Greer Center, but without specifically vesting contractual powers in DHS for the performance of that duty. The Plaintiffs do not expressly challenge the authority of DHS to contract for some services for the benefit of the residents of Greer. Their attack upon the outsourcing is instead based upon the idea that DHS employees have customarily provided the management and operational services. The conclusion they appear to draw from this fact is that outsourcing cannot thus be "necessary," in the sense that historically the only implied powers possessed by an officer or board are those which are necessary for the effective exercise and discharge of the powers and duties expressly conferred and imposed. See City of Wilburton v. King, 1933 OK 61, 18 P.2d 1075, 1076-1077. We disagree with Plaintiffs' interpretation that defines what is necessary to operate a state agency by what has customarily been performed in a different time and under perhaps different circumstances. For example, the appellate record states that the laundry of the clients is done on the premises, but linens and other laundry are outsourced. The laundry building at NORCE is vacant and used for storage because "it is more economical" to outsource the laundry. Plaintiffs' view of DHS contractual authority, if applied consistently, is that outsourcing services such as laundry are improper. Plaintiffs' interpretation of DHS contractual authority requires every service a client receives at Greer to be provided by a state employee, unless Greer has historically provided the service by other means. Implied or necessary authority thus becomes defined by what has occurred, as opposed by what is necessary in a given set of ctreumstances.

139 The trial court issued an injunction and determined two issues, that Plaintiffs possessed standing and that the Legislature had not given "specific authority" to DHS to outsource. We agree that plaintiffs as taxpayers possessed standing. We must reverse the decision of the trial court as to the standing of the parents and guardians, apart from taxpayer status, because of the unresolved issue of fact. When the Legislature has created a duty on the part of DHS without specifically stating the contractual authority of DHS, whether DHS possesses a particular contractual authority is dependent upon whether that contractual authority is necessary to perform the duty given to DHS. This issue was not litigated in the District Court. The statutory lack of "specif-ie authority" for an agency's contractual authority is not determinative of that agency's contractual authority. The District Court injunction against DHS is thus reversed. The judgment of the District Court is thus affirmed in part and reversed in part, and the matter remanded to the District Court for further proceedings consistent with this opinion.

1 40 HARGRAVE, C.J., HODGES, LAVENDER, OPALA, KAUGER, JJ., Concur.

141 WATT, V.C.J., Concurs in Parts I & II; Dissents in Part IIL.

142 BOUDREAU, J., Concurs in Parts I & II; Concurs in Result in Part IIL.

143 WINCHESTER, J., Concurs in Part I; Dissents in Parts II & IIL.

I 44 WINCHESTER, J.,

Concurring in part and dissenting in part.

I concur in Part I. I dissent to Part II because the parents have standing as taxpayers. I dissent to Part III. The provisions to the final agreement in the management contract provide for such control by DHS that the managing company could not even be considered an independent contractor.

      . DHS and Central Services filed a joint brief and we address their joint arguments as those of DHS.

      . We note that in Glass the Court determined that a school district possessed standing to challenge an alleged illegal ad valorem tax refund affecting the revenue of that district. The Court relied upon School Dist. No. 74 v. Long, 1894 OK 38, 37 P. 601, where we determined that School District No. 74 was legally charged with maintaining the schools in the district, and the clerk's acts in removing property from the tax rolls, with the decrease in dedicated revenue to the school, would necessarily result in an injury to the district by affecting its ability to carry out its legal obligation. See, Glass, 639 P.2d at 1238; Long, 37 P. at 601-602.

      . DHS raises, by a footnote in its appellate brief, that the OPEA fails to satisfy the second prong of the test for the standing of an association. DHS states, without citation of authority, or to the record on appeal, that the OPEA "is an organization of public employees whose purpose is to protect their rights as employees" and that the suit is not germane to this purpose. The trial court adjudication occurred in the context of motions for summary judgment. Those motions do not identify any facts relating to the purpose of the OPEA as either contested by, or agreed to, by the parties. Generally, on an appeal this Court does not make first instance determinations on disputed questions of fact or law. Martin v. Johnson, 1998 OK 127, 975 P.2d 889, 897. We decline to rule on the purpose of the OPEA without a trial court record showing that the fact was made an issue by the parties for trial court adjudication.

      . We have said that a patient in a mental hospital has a constitutional right to meaningful treatment. In re K.K. B., 1980 OK 7, 609 P.2d 747, 749. Assuming, but not deciding, that a similar right is possessed by the residents and may be championed by their parents and guardians, no allegations were made, or facts produced during the summary adjudication process, relating to any particular treatment of the residents as warranting a legal remedy.

      . Language in the contract with Liberty states that it is "outsourcing"" the management of the facility, and that this is not "privatization" because DHS continues to maintain the facility, "provide oversight of the operation of the Facility" and retain ownership of the property and equipment. We note that the parties do not address application of the Oklahoma Privatization of State Functions Act. The Act's effective date is January 1, 2000. 1999 Okla. Sess. Laws c. 281, § 6. The Act was codified with editorially renumbered sections at 74 O.S.Supp.1999 §§ 586-590. The Act defines "privatize" as entering into a contract for the performance of a duty or function which is currently being performed by a state employee. Id. at § 588. The Act requires certain procedures before a privatization contract is awarded. Id. at § 589. We decline to engage in a sua sponte discussion of when the Act applies.

      . Okla. Const. Art. 25 § 1:
      § 1. Relief and care of needy aged and disabled persons-Co-operation with Federal plan In order to promote the general welfare of the people of the State of Oklahoma and for their protection, security, and benefit, the Legislature and the people by initiative petition are hereby authorized to provide by appropriate legislation for the relief and care of needy aged persons who are unable to provide for themselves, and other needy persons who, on account of immature age, physical infirmity, disability, or other cause, are unable to provide or care for themselves; Provided, the Legislature or the people by initiative petition, are further authorized, in co-operation with and under any plan authorized by the Federal Government for State participation, to provide by appropriate legislation for the relief and care of aged or needy persons.
      The levy of taxes, other than ad valorem taxes, necessary to carry into effect legislation enacted pursuant thereto, is hereby authorized.

      . The Department of Public Welfare is now the Department of Human Services, the Public Welfare Commission is known as the Commission for Human Services, and the Director of Public Welfare is the Director of Human Services. 56 O.S.1991 § 162.1. See, eg., City of Chandler v. State ex rel. Dept. of Human Services, 1992 OK 137, n. 1, 839 P.2d 1352, 1353, (stating change of name); State ex rel. Dept. of Human Services v. Malibie, 1981 OK 18, 630 P.2d 310, 316, (same). An explanation of the change in name appears in those provisions of the Oklahoma Administrative Code describing the function and structure of the Department of Human Services. See O.A.C. 340:1-1-2(b) (1996) "In 1970, the Legislature authorized the Department of Public Welfare to operate as the Department of Institutions, Social and Rehabilitative Services and in 1980 changed the statutory name to Department of Human Services."

      . Okla. Const. Art. 25 § 2:
      § 2. Department of Public Welfare
      For the purpose of effectively administering and carrying into execution all laws enacted pursuant to the authority granted in Section One hereof, there is hereby created a Department of Public Welfare. Said Department of Public Welfare is hereby charged with the duty and responsibility of faithfully administering and carrying into execution all laws enacted pursuant to the authority granted in Section One hereof and shall perform such other duties as may, from time to time, be prescribed by law.

      . Okla. Const. Art. 25 § 4:
      § 4. Director of Public Welfare
      It shall be the duty of the Commission to select a Director of Public Welfare, who shall not be a member of the Commission, and who shall serve as the executive and administrative officer of the Department of Public Welfare. 'The Director shall be appointed wholly on the basis of ability, training and experience qualifying him or her for public welfare administration. The Director shall serve at the pleasure of the Commission. The salary of the Director shall be fixed by the Commission.
      The Commission shall formulate the policies, and adopt rules and regulations for the effective administration of the duties of the Department. All executive and administrative duties and responsibilities of the Department shall be discharged by the Director, subject to the approval of the Commission. Subject to the control of the Commission, the Director shall have the power and it shall be his duty to employ personnel of the Department, prescribe minimum standards of qualifications for such personnel and conduct examinations before employment, formulate salary schedules for classified service based upon training, experience and general ability of persons selected for positions in the Department or any institutions or activities under the supervision of the Department.

      . Generally, every positive delegation of power by the Constitution to one officer or department of government implies a negation of its exercise by any other officer or department. Board of Regents of University of Oklahoma v. Baker, 1981 OK 160, 638 P.2d 464, 466. No policy of the Commission is before us, and we are thus not called upon in this controversy to define with precision the scope of Art. 25 § 4 "policies" created by the Commission with respect to Art. 25 § 1 duties determined by the Legislature and the People.

      . The argument of DHS based upon its possession of a legislative power is addressed here as if DHS is asserting the Commission's legislative power as a justification for the challenged activity. As we indicate herein, the constitutionally created legislative power is vested in the Commission and not the Department or its Director. A particular power vested by the Oklahoma Constitution may be nondelegable, and nothing in Article 25 suggests that the Commission's constitutionally created legislative power is to be shared with the Department and its Director. For an example of a constitutionally created non-delegable power see, State ex rel. Oklahoma Bar Association v. Downing, 1990 OK 102, 804 P.2d 1120, 1122, 1123, where we said that the Supreme Court possesses a nondelegable constitutional responsibility to regulate both the practice and the ethics, licensure, and discipline of the practitioners of the law.

      . The Legislature may expressly grant an implied power. See, eg., 17 0.$.2001 § 153 (Corporation Commission); 36 0.$.2002 § 332 (State Board for Property and Casualty Rates).

      . In H.F. Wilcox Oil & Gas Co. v. Walker, 1934 OK 280, 32 P.2d 1044, we said that the maxim prohibiting the delegation of power has some qualifications, one of which occurs in the context of an administrative board exercising a legislative power. This qualification requires the legislative power of the board to be guided by procedural and substantive limits set by the Legislature. Id. at 1047. See also Democratic Party of Oklahoma v. Estep, 1982 OK 106, 652 P.2d 271, 276 (legislative standards are necessary for delegated legislative power). The parties do not rely upon any rule or procedure of the Commission, or point to any legislative standards created by the Legislature or the People, and this exception to the maxim is not before us for application.

      . The phrase "this act' refers to statutes originally enacted in 1963 (1963 Okla. Sess. Laws, Ch. 37), later codified at 56 O.S8.1981 §§ 301-318, and then renumbered in 1982 (1982 Okla. Sess. Laws, ch. 312), and codified at 10 0.$.1991 §§ 1406, 1408, 1409, 1410, 1411, 1412, 1413, 1414, 1415, 1416, and 1417.

      . 75 O.S.Supp.1999 § 250.3(15), (c), states, in part, that a "rule" does not include "statements and memoranda concerning only the internal management of an agency and not affecting private rights or procedures available to the public

      . See Okla. Const. supra. Art. 25 § 4, at note 10,

      . Plaintiffs argue that outsourcing management is statutorily authorized by 74 O.S.Supp.1998 §§ 1803.1 & 1803.1a, (Oklahoma Tourism and Recreation Commission's authority over the Quartz Mountain Arts and Conference Center and the Texoma Lodge); 10 O.S.Supp.2000 § 7304-1.3(C)(4) and (C)(3)(c) (contracts relating to for juvenile detention facilities); 63 0.S$.Supp. 2000 § 3203, 3226 (University Hospitals Authority Act); 3 O.S.Supp.1995 § 85(i), (Oklahoma Aeronautics Commission may enter into any contracts necessary to the execution of the powers granted it by this act).

      . Statute provides that the Greer Center Admissions Committee shall include "an independent psychologist or psychiatrist on contract with the Department of Human Services," but that language does not expressly authorize the Department to create such contracts 10 O.S.Supp. 1997 § 1414.1(E), (emphasis added).

      . 56 O.S.Supp.1992 § 200d:
      § 200d. State Medicaid Plan provider contracts-Terms and conditions-Termination-Annual inspection of facilities
      A. Every contract pursuant to the State Medicaid Plan entered into between the Department of Human Services and facilities that provide inpatient or residential mental health services to persons eighteen (18) years of age or younger who are or may be eligible for assistance through Title XIX of the federal Social Security Act shall incorporate terms and conditions for the care, treatment and services to be provided.
      B. Said terms and conditions shall be substantially the same as those included in placement agreements for acute or freestanding, as appropriate for the facility, psychiatric care for children and youth who are in the legal custody of the Department of Human Services and shall include, but not be limited to:
      1. Primary care, treatment and counseling services;
      2. Educational services;
      3. Face-to-face visitation by the attending physician, treatment plans, discharge planning, reports on the progress of the child and other reports as necessary and appropriate;
      4. Use of medications;
      5. Communicable diseases;
      6. Visitation and correspondence;
      7. Use of restraints, seclusion, physical force and disciplinary measures; and
      8. Inspections and reviews of the care, treatment and services provided.
      C. The Department shall immediately initiate procedures for the termination of said contract when:
      1. A contracting facility continually violates the terms and conditions required by this section; or
      2. The conditions within the facility pose serious harm or a threat of serious harm to patients or residents who are eighteen (18) years of age or under and have been admitted for the purpose of mental health or chemical dependency treatment.
      D. The Department shall coordinate with the State Department of Health and any other applicable licensing or certifying agency to ensure that, whenever possible and practicable, annual inspections of hospitals, related institutions and child care facilities required by state or federal law shall be conducted jointly.

      . 56 0.S.Supp.1992 § 225.1:
      § 225.1. Records regarding agreements or authorization to settle claim for reconciliation purposes for contracts or purchases
      A. The Department of Human Services shall maintain detailed records regarding any agreements or authorizations to settle a claim made for reconciliation purposes for any contract or purchase of materials, items, supplies or services. Such records shall include but not be limited to identification of parties involved in the reconciliation, identification of materials, items, equipment or services at issue, among originally due and owing and amount of settlement.
      B. Any settlement made for purposes of reconciliation for any contract or purchase of any materials, items, equipment or settlement shall be approved in writing by the administrative head of the division making such settlement and by the Director of the Department of Human Services.

      . In determining what is "necessary" for DHS to perform its duties the trial court might consider (1) whether the Legislature provided a mechanism for DHS to follow, Okla. Tax Comm. v. Fortinberry, 1949 OK 75, 201 Okla. 537, 207 P.2d 301, (2) whether the statutes and their history relating to DHS and Greer Center suggest that an implied power is part of a statutory scheme, City of Hugo v. State ex rel. Public Employees Relations Bd., 1994 OK 134, 886 P.2d 485, 492, (3) whether withholding outsourcing power from DHS would be inconsistent with the purpose of some constitutional or statutory provision, Board of Examiners of Veterinary Medicine v. Tubbs, 1957 OK 13, 307 P.2d 830, or (4) whether the Legislature appropriated funds for the expenditure of outsourcing at Greer Center, Lingo-Leeper Lumber Co. v. Carter, 1932 OK 735, 161 Oka. 5, 17 P.2d 365.