County jails can be operated by county trusts if the trust was formed under certain state statutes, the state attorney general's office replied May 26 to State Rep. Glen "Bud" Smithson (D-Sallisaw) questions about county jail operations.

Smithson, after questions arose about the Sequoyah County Criminal Justice Authority's right to operate the new county jail, requested an attorney general's opinion on four questions.

The attorney general's office answered one of the questions, in part, but directed Smithson to contact the district attorney on his other questions.

Smithson said he will study Davis' analysis of his questions before he makes a decision to pursue answers to his questions any further.

District 3 Commissioner Cleon Harrell said Thursday he had not seen the information, and would also have to study the analysis before making a comment.

Harrell did say the Sequoyah County Criminal Justice Authority was organized upon the advice of Assistant District Attorney Jerry Moore, with the assistance of an attorney who had experience in forming trusts.

D. Casey Davis, an assistant attorney general, said a jail trust can be formed under two separate state laws, in two different manners, and it appeared the Sequoyah County Criminal Justice Authority was organized under one of those laws, as a "Title 60 Trust."

Davis wrote, "A Title 60 Trust may be created by the board of county commissioners without voter approval and has more flexibility in the powers and duties of its trustees."

The formation of a public jail trust, Davis wrote, can alter the duties of the sheriff and "he may no longer be in charge of the jail."

The Questions

Smithson asked the attorney general's office to answer the following:

1. Do the county commissioners have the power to take control of the new county jail from the elected sheriff?

2. Do the county commissioners have the right to assign office space in the new (jail) structure to other county officers?

3. Have the county commissioners added to or padded the expenses of the construction to the jail, contributing to its being well over budget?

4. Has the county commissioners' handling of the one-half cent sales tax, approved by county voters for the jail, been completely legal?

Davis noted that the reply to Smithson's first question was not an official opinion of the attorney general because the question could be answered by statutes and case law.

But Davis tempered his analysis of the jail trust by stating, "Whether the trust in your situation was lawfully created is a question of fact [meaning a judge or trial jury must determine the truth or falsity or mix of both in the situation] and cannot be answered by the office of Attorney General."

About the other questions, Davis wrote: "The answers to the final three questions you ask are all dependent upon factual determinations. This office is unable to answer such questions. Any investigation into the lawfulness of the County Commissioners' actions should be referred to the District Attorney. He may request the assistance of the Oklahoma State Bureau of Investigation or the Office of State Auditor and Inspector."

The controversy over jail operations grew out of the three commissioners' organization of the trust, which took jail management away from Sheriff Johnny Philpot. The trust includes Philpot; the three commissioners, Harrell, District 1 Commissioner Bruce Tabor, and District 2 Commissioner Lewis Warren; and Joe Peters of Sallisaw.

Philpot and Peters argued the sheriff should operate the jail, while the three commissioners said they asked repeatedly for a budget for the new jail from Philpot, and when no budget was received, the trust was organized to oversee both the budget and jail operations.