Welcome to the Oklahoma Municipal League’s Inquiry FAQ
The Oklahoma Municipal League’s Inquiry Service provides technical assistance and research services to municipal officials on a variety of issues. The Inquiry ‘Hotline’ provides a wide range of information that sometimes can require extensive research involving a considerable amount of time and effort by our Inquiry staff. We answer all inquiries from municipal officials and employees who are calling about matters within their official responsibilities. We can provide this information by phone, fax, mail or email. This information includes sample ordinances, articles, papers and any other relevant material from our files.
The Oklahoma Municipal League Inquiry Service does not render legal advice or act as a legal advisor. Your municipal attorney is your legal advisor. Acting on his/her advice gives your municipality a measure of protection should there be any questions regarding the particulars of your unique situation.
The information provided from the FAQ Inquiry page is general information, and as always you should contact your municipal attorney with the particulars of your situation for the information provided here may alter any conclusions reached herein.
The Oklahoma Municipal League provides library and reference services to its members. OML does not give legal advice or act as a legal advisor. Please discuss all legal matters with and follow the advice of your city or town attorney
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A: Well, it depends.
Q: Depends on what?
A: Principally on whether it is the municipality or the public trust awarding the contract.
If it is the municipality that is contracting with the trash hauler
Public Competitive Bidding Act (61 O.S. 101 and following) does not apply since it only applies to “public improvements” which are defined as a “beneficial or valuable change or addition, betterment, enhancement or amelioration of or upon any real property . . . “
If it is the public trust that is contracting with the trash hauler
There is a split among municipal attorneys about whether the public trusts bidding statutes applies. It requires competitive bidding for “construction, labor, equipment, material or repairs . . . “ The minority opinion is that the word “labor” can be broadly interpreted to include all types of service contracts and even professional services such as engineers, attorneys etc. Other city/town attorneys do not read it this expansively.
Q: You mean attorneys disagree with each other?
A: Sure. You know, ask two attorneys – get three opinions!
Q: What if it is an emergency – like a trash hauler suddenly going out-of-business?
A: Well, it depends.
Q: Here we go again!
A: Sad, but true. It depends on whether the facts fit the definition of “emergency”.
Under the Public Trusts Bidding Statute (60 O.S. Section 176(h))
The term used in the law is an “immediate emergency” which is a factual situation where the “trustee or the trustees find that an immediate outlay of trust funds in an amount exceeding $25,000 is necessary in order to avoid loss of life, substantial damage to property, or damage to the public peace or safety.” This is a factual determination and, unfortunately, there is no clear, bright line on this issue. The city or town should take no action without getting the okay of their municipal attorney.
In addition, if it is an “immediate emergency” under the law, the statute requires that a finding of an emergency “shall be entered in the journal of the trust proceedings”.
Yes. All Public Agencies must follow the Public Competitive Bidding Act at 61 O.S. Section 101 et seq. In addition, public trusts must follow this act PLUS the Public Trusts Bidding Law at 60 O.S. Section 176(h).
Public agencies include cities, towns, public trusts and any department, agency, board, commission, committee or authority of any city, town or public trust.
In addition to these state laws some municipalities have charter or local ordinances or policy requirements for bidding. These may require bidding requirements that are stricter than state law.
All “public construction contracts” must be awarded to the lowest responsible bidder after solicitation for written bids. No work shall be commenced until a written contract is executed and proof of insurance has been provided by the contractor to the awarding public agency. 61 O.S. Section 103
A. Public construction contracts exceeding $50,000 shall be let upon sealed bids and in accordance with all procedures of the Public Competitive Bidding Act.
B. Such contracts less than $50,000 shall be let and awarded to the lowest responsible bidder by receipt of written bids; however, the statute allows an awarding public agency to adopt its own procedures for bid solicitation, award and management of contracts.
C. Public construction contracts for less than $2,500 for minor maintenance or minor repair work may be negotiated with a qualified contractor.
A. "Public Construction Contracts" are defined as any contract exceeding $50,000 awarded by any public agency for the purpose of making any public improvements, constructing any public building or making repairs to or performing maintenance on any public building.
B. "Public Improvements" are defined as any beneficial or valuable change or addition, betterment, enhancement or amelioration of or upon any real property, or interest therein, belonging to a public agency, intended to enhance its value, beauty or utility or to adapt it to new or further purposes. The term DOES NOT include the direct purchase of materials, equipment or supplies by a public agency or any personal property as defined in 62 O.S. Section 430.1,
C. Numerous provisions are mandated for bid notices, advertising, awarding contracts, change orders, qualification of bidders, insurance and other matters.
D. The Act provides for waiving bidding requirements if an emergency exists, and for negotiating a contract if no timely bids are received. Advice and counsel of your municipal attorney should be sought to assure strict compliance with these provisions.
Yes. It has a lower bidding threshold of $25,000 as contrasted with the Public Competitive Bidding Act’s $50,000.
Public trusts must bid for all public contracts for construction, labor, equipment, material or repairs in excess of $25,000. The bid shall be awarded to the lowest and best competitive bid. 60 O.S. Section 176(h).
No. The "best" bid may or may not be the "lowest". There may be concrete, factual reasons that a higher bid is the best. This may include experience with the higher bidder, better materials or warranties and the like. Seek the advice of your municipal attorney in this matter.
Yes. The Act allows the waiving of the bidding requirements in an emergency.
A. Special bidding requirements are at 11 O.S. Section 10-116(B) for the Council-Manager form and in 11 O.S. Section 11-116(B) for the Strong Mayor-Council Form of Government.
B. Both special statutes allow the council by ordinance to prescribe requirements and procedures for competitive bidding before the purchase or contract for supplies, materials or equipment is made. The council cannot exempt a particular contract, purchase or sale from the requirements of competitive bidding.
Who is responsible for creating the budget? Are there legal deadlines?
Developing a Budget is a never ending process. The process begins the moment you begin your fiscal year and ends, only to begin again.
There are two basic budget options for Oklahoma municipalities. The Municipal Budget Act (11.O.S. §§ 17-201 through 17-216) and the Estimate of Need Law ( 68 O.S. §§ 3001 through 3033 & 62 O.S. § 461). You will need to determine which one is Applicable to your municipality.
It will depend on your form of government on who prepares the budget.
Aldermanic form of Government - Mayor prepares the budget
Council-Manager form of Government - City Manager prepares the budget
Strong-Mayor form of Government - Mayor prepares the budget
Town form of Government - Council prepares the budget
The legal deadlines for municipalities under the Municipal Budget Act are as follows:
The legal deadlines for municipalities under the Estimate of Need Law are as follows:
(For more details about budgets see pages G-6 through G-20 of the OML Handbook for City and Town Officials.)
The Attorney General issued an opinion (2004 OK AG 15) on ‘subsidizing’ a private ambulance service. The crux of the opinion is whether the fee pays for a public purpose. A city-owned operation, such as an ambulance service, is a public purpose of the city. By collecting the fee through the utility bill, the city is merely charging for a service like it does for water, sewer, garbage, electric, gas, etc, this is just one more utility service.
You should work with your municipal attorney to create a policy about what happens if the entire bill is not paid. The law is settled that you may not terminate water service if the ambulance fee is not paid. However, you may have a policy that partial payments will be allocated first to ambulance, then to garbage, then to sewer and last to water. In implementing a policy, the fee that is left unpaid is the water bill.
It has been brought to our attentionthat we need to send $5.00 to a drug fund from each conviction of a drugoffense. Do you have any information about this?
EFFECTIVE JULY 1, 2008- SB 1960 created the Bureau of Narcotic Drug Education RevolvingFund, which is to be used by the Oklahoma State Bureau of Narcotics andDangerous Drugs Control for purposes relating to drug education and informationin the State.
Any person entering a plea of guiltyor nolo contendere to the crime of misdemeanor possession of marijuana isrequired to pay a five dollar ($5.00) fee, which is in addition to andnot in substitution for any and all fines and penalties provided for lawfor such offense. The court clerk shall deposit the amount for everyadjudicated or convicted person.
New Law- Title 69, Sections 265, and2357.301
Marihuana Report (.doc)
Funds are to be submitted to:
Oklahoma Bureau of Narcotics and DangerousDrugs Control
Attention: Drug Education Fund
440 N.E. 39th Street
Oklahoma City, OK 73105-7200
Questions or for electronic transfercapabilities contact Pam Birdsong, Director of Fiscal Services, OBN @ (405)521-2885 or email: [email protected]
Question: Our town’s volunteer fire department is gettingready to conduct it’s annual taco sale, and holds other fund-raising events throughout the year. It has been thepractice of the fire department members to deposit the funds into a bankaccount controlled by the fire department, rather than turning the money overto the town treasurer for deposit into the general fund. Is this legal?
Answer: Well theshort answer is No but maybe Yes. Thefirefighters may believe any money raised by them is their money to do with asthey wish, however this is only true in certain restrictive instances. Both paid and volunteer municipal firedepartments are administrative departments of the creating municipality. Any money derived from any activity of amunicipal department is required to be paid over to the municipaltreasurer. (Title 62 O.S. Section335-below) If the volunteer firefightersform an association, and raise money in the name of the association rather thanthe name of the department, the money is the property of the association andthe municipality has no oversight or accountability for it.
Title 62. PublicFinance Section 335- Money Received From Lease, Sale or Rental - Disposition of
When any money is due anycounty, city, town or school district in this state from sale, lease or rentalor any public property, or royalty, or for compensation for service of publicemployees or other purpose, it shall be paid over to the lawful treasurerthereof.
The governing board shallhave authority to direct by written resolution duly entered in the minutes ofits meeting at the time such money is received or prior thereto that such moneyshall be credited to the fund account from which such property was derived or fromwhich payment has been or will be made for such services rendered or otherpurposes.
If there be no resolution bythe governing board directing the disposition of the money received ascontemplated herein it shall be the duty of the treasurer to credit such moneyso received to the general fund.
The governing board shallhave authority to direct that a fund derived for such sources as hereincontemplated, where applicable to a public utility, be created and used torepair, relocate or replace any utility or part thereof new or hereafterexisting.
The statutes do not offer any specific guidance on procedures to cancel regularly scheduled meetings. However, they do offer guidance on the procedure to have a special meeting. Meetings can be cancelled for a variety of reasons. Unless the day, time and/or place are permanent changes, the regular meeting is simply cancelled for reasons (list reasons; no quorum, emergency, holiday...) Cancellation of the meeting(s) should meet the same posting requirements provided in the notification of the meeting(s). Any meeting that is to take place that is 'other' than a regularly scheduled meeting, would be called a special meeting. Notification of a special meeting is found in Title 25 OS sec 311 of the Open Meetings Act under item A. (11).
May a municipality set a policy requiring agenda items be submitted to the municipal clerk no later than 72 hours prior to each regularly scheduled meeting in order for the agenda to be prepared and packets sent out to councilmember’s in a timely manner?
The short answer is yes. The governing body of a municipality is authorized to adopt whatever rules of procedure it wishes to follow. 11 O.S. Section 9-110 However, cities governed under charters will be guided by their charter provisions in adopting these rules. The Open Meeting Act states at Title 25 O.S. Section 311 that “…all public bodies shall, at least twenty-four (24) hours prior to such meetings, display public notice of said meeting, setting for the thereon the date, time, place and agenda for the said meeting….” Therefore, adopting a policy requiring the city clerk receive agenda items before a time limit set by the council would not violate the Open Meeting Act as long as the agenda is posted at least 24 hours before the beginning of the meeting. Nowhere in the Open Meeting Act does it require agenda items be accepted by the public body for placement on the agenda up until the 24 hour time limit.
Title 25 O.S. Section 304 defines public bodies as “governing bodies of all municipalities located within the State of Oklahoma, Boards of County commissioners, boards of public and higher education and all boards, bureaus, commissions, agencies, trusteeships, authorities, councils, committees, public trusts, task forces or study groups in the State of Oklahoma supported in whole or in part by public funds or entrusted with the expending of public property, and shall include all committees or subcommittees of any public body.”
The Attorney General (2002 OK AG 37) rendered an opinion defining “supported in whole or in part by public funds” but the mere payment of public funds is not the controlling factor, and a examination must be conducted into the ins and outs of the relationship between the parties. A legal determination will ultimately depend on the terms of the agreement and all relevant factual circumstances. Given the lack of a ruling from the Oklahoma Supreme Court, it is best to obtain an opinion from your city attorney on the status of your local organization.
Councilmembers and citizens bring numerous items to put on the agenda and the meetings go on for hours. Is there any way we can limit the amount of items a councilmember or citizen put on the agenda? Can we set time limits on citizens discussing agenda items?
The governing body has the authority to determine its own rules for meetings. This is true no matter what form of government your municipality is under. Of course, if your municipality has a charter it will be guided by the provisions outlined within the charter. The Attorney General (1998 OK AG 45) determined “Oklahoma's Open Meeting Act Does Not Require That Public Bodies, Such as City Councils, Afford Citizens a Right to be Heard at Meetings Conducted Under the Act.” The council has the right to limit citizens’ comments. This can be done many ways. Some councils limit citizens’ comments to two (2) minutes at the end of the council meetings. Then the concerns can be added to the agenda for discussion at the next council meeting. However your council chooses to address the rules, they must be adopted by a vote of the governing body. Once this is done the rules shall be enforced.
Q: Must Minutes Be Taken in Executive Session?
Q: Wow, Is It That Easy?
A: No, of Course Not!
This is an area of the Open Meeting Act that was much debated until an Attorney General’s Opinion clarified the issue. The area of debate was what does “minutes” in executive session mean. Is this statutory requirement a summary of the discussion or something much more streamlined?
The Attorney General in Opinion No. 96-100 held that “while it is certain that minutes must be kept, this requirement may be met in a variety of ways. As provided in Section 312 of the Open Meeting Act, minutes are simply a written summary of the proceedings, not a work-for-word transcription.” (Emphasis is the Attorney General’s).
Section 312 defines “minutes” as “an official summary of the proceedings showing clearly those members present and absent, all matters considered by the public body, and all actions taken by such public body.”
Absent an Oklahoma Supreme Court case, the general consensus appears to be that minutes should:
· Record that the agenda showed a proposed executive session for the agenda item to be discussed and the statutory authority for the executive session (See Section 311 B.2).
· Show a motion and recorded vote to go into executive session and should show all members absent and present for the session.
· State all matters considered – discussed – in the executive session.
· Record all action taken on the matters discussed. Because the public body may not take action in the executive session, the minutes will show how the public body disposes of each matter discussed upon its return to the public session of the meeting.
A. What is an ordinance? An ordinance is defined as a formal legislative act of a municipal governing body which has the force and effect of a continuing regulation and a permanent rule of conduct or government for the municipality. 11 O.S. Section 1-102.
B. What is a resolution? A resolution is a special or temporary act of a governing body which is declaratory of the will or opinion of a municipality in a given matter and is in the nature of a ministerial or administrative act. A resolution is not a law and does not prescribe a permanent rule of conduct or government. 11 O.S. Section 1-102.
C. What are resolution details? Resolutions are not required to be published unless required by Charter. Municipal clerks are not required to keep a “Resolution Book”. Some clerks record resolutions in full in a minute book, but no statute requires this.
A. Must the ordinance be in writing? Yes. The governing body must have before it a proposed ordinance that is a written document, which contains the exact wording, which the governing body intends to adopt as law.
B. Can the ordinance be amended? Yes. It may be amended at the meeting at which it is considered but all motions to amend must state (a) the exact language to be added to or deleted from the proposed ordinance; and (b) exactly where that language will be added or deleted.
C. Can the ordinance be written after the vote? No. It is not sufficient to vote on a policy proposal if that proposal is not written down in ordinance form at the time of the vote. An "ordinance" drafted after a vote is not valid.
D. What majority is required for an ordinance? The proposed ordinance must be passed by a majority of all the members of the governing body. A majority of the quorum is not sufficient. (Example: if there are five governing body positions and two positions are not present, three members make a quorum. However, all three members would have to agree because an ordinance requires a majority vote of all members.)
A. When is a majority of all the members required? A majority of all the members of the governing body is required to: (1) adopt an ordinance (11 O.S. Section 14-102); (2) appoint a city manager (11 O.S. Section 10-122) and (3). To borrow or appropriate money. (11 O.S. Section 17-101).
B. What is required to fill a vacancy? A majority of all the remaining members of the governing body is required to appoint a person to fill a vacancy on the governing body. (11 O.S. Section 8-109).
C. When is a 2/3rd vote required? A 2/3 vote of the governing body is required to change the boundaries or number of wards of a municipality. (11 O.S. Section 20-103).
D. When is a 3/4th vote required? A 3/4 vote of all governing body members is required to attach an emergency clause to an ordinance (11 O.S. Section 14-103).
E. When is a 3/5th vote required? If a protest is filed regarding a proposed change in zoning ordinance, a 3/5th favorable vote of all members is required to make the change if the governing body consists of 7 members or less; a 3/4th favorable vote of all members is required if the governing body consists of more than 7 members. (11 O.S. Section 43-105).
A. What are the basics? When adopting an ordinance, the minutes should contain: (1) An indication that the ordinance was on the agenda for approval; (2) A brief summary of the findings by the governing body that the ordinance was necessary; (3) The name of the person making the motion adopting the ordinance and the name of the person seconding the motion; (4) The adopting motion (which should include the number and title of the ordinance adopted); (5) The vote of each member on the motion. 25 O.S. Section 115.
A. How is quorum defined? Title 11 defines "quorum" as a "majority of ALL the members of the governing body, board, or commission, including vacant positions. If a city is governed by a charter, that charter may have a different requirement. 11 O.S. Section 1-102.
B. Where are quorum definitions for specific forms of government? The various forms of municipal government have specific statutes that define quorum as a majority of all members of the governing body. The Aldermanic Form is found at 11 O.S. Section 9-110. The Council-Manger Form is found at 11 O.S. Section 10-109. The Strong Mayor-Council Form is found at 11 O.S. Section 11-110. The Town Board of Trustees Form is found at 11 O.S. Section 12-108.
A: Yes. There are two ways to dissolve a municipality. Each requires specific facts in order to get the job done. Dissolution may be done via: Application signed by one-third of registered voters residing in the municipality as shown by the preceding general election. 11 O.S. Section 7-101. The application would then need to be approved by a majority vote and the “votes have been caste by at least two-fifths of the registered voters of the municipality (as shown by the preceding general election).” 11 O.S. Section 7-102.
Action by the district attorney in district court if:
(1). General elections have not been called in the municipality for two successive general elections; or
(2). A majority of all the members of the governing body fail to qualify for two successive general municipal elections. 11 O.S. Section 7-105.
With the high cost of fuel, our citycouncil wondered if golf carts could be legalized to operate on city roads inan effort to help our constituents with their effort to save money?
The governing body may pass anordinance to allow golf carts on city/town streets, that does not conflict with Oklahoma Statutes, Title 47 O.S. Section 1151.1. OMLhas samples of other municipality’s ordinances that have been passed inparallel with the Oklahoma Statutes. For a sample, please clickhere: (Hobart ordinance)
We have recently received several inquiries on the requirements of the Fire and Police Arbitration Act (FPAA). It appears the Fraternal Order of Police (FOP) is attempting to organize labor unions for police officers in several new communities. Should you be contacted by the FOP, we have excellent materials we can forward you to assist in your response.
Like many municipal statutes, the FPAA has its own “language” and sometimes complex legal concepts. Although the bargaining statute passed in the early 1970’s, the legal principles are still being established for bargaining, contract management and employer/employee labor relations. While this state of flux might make this an exciting area of municipal law, it is also sometimes hard to identify exactly what can and can’t be done on a day-to-day basis.
The FPAA governs the collective bargaining, unit membership, union certification/de-certification, arbitration and unfair labor practice requirements between municipalities and police and fire labor unions. The FPAA falls under the oversight of the Public Employees Relations Board (PERB), a state agency located in Oklahoma City. The FPAA is found at 11 O.S. Section 51-101 and following.
The duty to bargain is broadly worded to include “wages, hours and other terms and conditions of employment.” The Oklahoma Supreme Court has held that the city/town is held to the highest standard of good faith. The police and fire labor union members are prohibited from striking under Oklahoma law.
The Act mandates that all the “permanent paid members” of any fire or police department are eligible to be members of the bargaining unit. Unlike other state’s, Oklahoma does not exempt out supervisors. The only exemption from union membership is the chief and one administrative assistant.
The two major areas of court cases and PERB complaints over bargaining unit membership are: (1) who is a police officer under the FPAA definition; and (2) the right of a probationary police officer or firefighter to full contract protections including the right to challenge management decisions via grievance arbitration.
A major area of litigation under the FPAA is over the meaning of the Act’s prohibition of unfair labor practices. These are heard at PERB and appealed to District Court. Many of the cases are in the area of failure to bargain in good faith arising from charges of unilateral action as well as a failure to participate in arbitration. These disputes oftentimes turn on whether the collective bargaining agreement contains a sufficiently broad management rights clause to authorize the management action taken.
The FPAA has detailed requirements on certification/decertification of a labor union. PERB is given jurisdiction over these actions. Voting is done by secret ballot and the results are certified by PERB.
PERB is composed of a three member board with staggered five year terms appointed by the Governor. The Attorney General’s office provides legal representation to the Board. Its areas of jurisdiction are in union formation and unfair labor practice charges. Appeal from PERB decisions are taken to district court and are governed by the Administrative Procedures Act. PERB is a full party to the appeal.
Yes. There is interest arbitration (occurring when the parties have failed to reach agreement via bargaining) and grievance arbitration (which resolves disputes over the meaning of the agreement once it is in place). Arbitrators are usually selected via the Federal Mediation and Concilation Service (FMCS). The cost of arbitration is shared between the parties and formal rules of evidence do not control.
Yes. Grievance arbitration is binding on all parties except in narrow circumstances that are still evolving via litigation. Interest arbitration is not binding on the municipal employer. The city or town can reject the interest award and present the union and city/town last best offers to the voters in a special election. If the parties cannot reach agreement on the ballot language then the matter is referred back to the interest arbitrator who will determine the ballot language. The decision of the voters then establishes the contract.
This is a major area of dispute in the FPAA. The outcome of the controversy normally revolves around the meaning of the language in the collective bargaining agreement. The municipality is usually arguing that the contract grants it the authority to take a particular action (usually via a management right) and the union is arguing the opposite. In these situations the union normally argues that a past practice exists between the parties to handle a matter in a certain way and that this past practice controls the outcome of the dispute.
Oh, yes. OML has a Labor Program specifically for those municipalities that are unionized. We hold meetings during the spring bargaining season and monthly bulletins are published throughout the year to give the latest information on employment and labor matters. For more information contact [email protected]
Yes. On June 18, 2002 the Oklahoma Supreme Court held that all municipal police officers that participate in the Oklahoma Police Pension System may not be terminated “except for cause." The Court also ruled that these municipalities must establish a review board to hear “appeals concerning the discharge of members.” That law can be found at 11 O.S. Section 50-123.
Yes. This case of City of Durant v. Cicio, 2002 OK 52 is an interpretation of 11 O.S. Section 50-123 of the Police Pension System. Therefore, the trigger for this legislative exception to the employment-at-will doctrine is membership in the Oklahoma Police Pension system.
So, if my municipality does not participate in the State Police Pension System, this doesn’t apply?
No. It doesn’t matter whether your municipality is large or small. For each of your police officers that are members of the Pension System, state law supersedes your local ordinances, personnel policies or contracts.
Does this also cover the chief?
Yes. See Allen v. City of Henryetta, 2003 WL 380707 (10th Cir. 2003).
Are there any exceptions in the pension statute?
Yes. This provision doesn’t apply if your officers have a civil service board or review board or a negotiated contract covering discharge appeals. Therefore, if you fall into one of these categories, you would not be required to create the Board of Review.
Yes. Under FOP v. City of Ardmore, 2002 OK 19 probationary employees do not have full rights under the FPAA to go to grievance arbitration. Therefore, it may be that probationary police officers, even in a unionized workforce, have coverage under the Police Pension’s Section 50-123.
What action can this Board of Review take after hearing an appeal?
This review process can reverse the termination decision and put the officer back to work.
Who is on this Board of Review?
This Board of Review “shall consist of the mayor, ex officio, who shall be a voting member, and four members appointed by the governing body of the participating municipality, as follows: 1. Two police officers retired or active from the police department of the municipality; and 2. One attorney and one licensed physician residing in the municipality . . . .” Section 50-123(B).
What if persons meeting these qualifications are unavailable for appointment?
The Mayor shall make appointments from the governing body of the municipality. However, neither the Chief of Police nor any person having direct appointive authority for police personnel shall be eligible for appointment.
Yes. Under the 14th Amendment of the U.S. Constition, the U.S. Supreme Court held a property right exists if a municipal employee cannot be terminated “except for cause.” See, Melton v. City of Oklahoma City, 879 F.2d 706 (10th Cir. 1989).
What does this constitutional property right mean?
This means a Due Process hearing must precede deprivation of a property right such as termination, demotion or the like.
What are the legal components of Due Process?
Due Process has been defined as a notice and opportunity to be heard.
What are the consequences if this Due Process Hearing isn’t completed prior to deprivation?
Failure to protect this property right can result in a federal civil rights lawsuit filed against you and your municipality.
Are there some court cases I can show my attorney?
Yes. Important cases are Powell v. Mikulecky, 891 F.2d 1454 (10th Cir. 1989), Hennigh v. City of Shawnee, 155 F.3d 1249 (10th Cir. 1998), and Goudeau v. Independent School District No. 37 of Oklahoma County, Oklahoma, 823 F.2d 1429 (10th Cir. 1987).
Isn’t this legally risky?
Indeed. There is potentially both federal and state liability if police officer employment actions are undertaken against officers who participate in the State Police Pension System. You should immediately contact both your municipal attorney and the insurance company who carries your city or town’s tort liability insurance and follow their legal advice.
There are several legal principles in play, including a key provision of the Oklahoma Constitution. The Oklahoma Constitution at Article 23, Section 10 provides that wages and emoluments (fringe benefits) for an officer, elected or appointed, may not be changed after his election or appointment.
Yes. See Edmondson v. Oklahoma Corporation Commission, 971 P.2d 868 (Okl. 1998) for a discussion of these principles. Like so many issues in municipal law, the facts matter when applying these principles so the advice of your legal advisor is essential before taking action.
Yes. The guiding principle is only those officers elected or appointed after the ordinance is enacted may benefit from any increase so provided. When an incumbent is re-elected, he may receive any increase enacted prior to his re-election. If structured correctly, a governing body may provide for step raises or other incremental increases in salary for elected officers if the increase occurs automatically without any further need for decision making by the governing body.
Yes. For example, an ordinance may provide that increases will be in the same percentage as any increase in the Consumer Price Index or the average percent or amount of increase for employees of municipality
Yes. For the definition of “officer or official” see 11 O.S. Section 1-102
There is a detailed discussion of salaries and benefits contained in the OML Handbook under “Public Officials” in Section B.
What about “extra duties”? Each statutory form of government allows the clerk and treasurer to perform extra duties, which are not related to their statutory duties. The elected clerk and treasurer may receive additional compensation for these "extra duties". This must be established by ordinance. This does not apply to governing body members.
Why is the wording of the ordinance so important? The ordinance establishing the "extra duties” must distinguish between the official and unrelated duties and establish by ordinance the salary for the unrelated duties, if any, as an item of compensation separate from the salary for official duties.
Is the clerk and treasurer as an employee for non-statutory duties? When the ordinance establishing pay for unrelated duties is written correctly, (see the example in the OML Handbook) the clerk or treasurer will perform their non-statutory duties as an employee rather than as an officer of the municipality. The compensation for those unrelated duties, therefore, may be changed during a term of office by amending the ordinance, which fixed the salary. As a true employee of the municipality, the clerk or treasurer must function in the same manner as all other personnel.
Is there an exception for the statutory council manager form of government? For a possible legal exception for clerks and treasurers in the statutory council manager form of government to receive compensation changes in their statutory duties see Attorney General Opinion 85-13. It should be noted that the Oklahoma Supreme Court has not ruled on this point of law.
Yes. As to members of the governing body, a different statute applies. A person may hold more than one office or position in a municipal government as the governing body may ordain. However, a member of the governing body “shall not receive compensation for service in any municipal office or position other than his elected office.” 11 O.S. Section 8-106 and 2001 OK AG 23.
Yes. Trustees of public trusts who are public officers, shall serve without compensation, but may be reimbursed for their expenses incurred in the performance of their duties as trustees. 60 O.S. Section 178(A).
Yes. There is a limited exception allowing compensation if the trust was created and existing prior to July 1, 1988 and the trust shall have been held to be a valid and binding agreement in an opinion of the Oklahoma Supreme Court. Section 178(F) and 2003 OK AG 43.
I have a councilmemberwho wants to see how much overtime is paid and what employees are being paidovertime. Is this okay for me to give out?
The gross payroll would be an Open Record. Your municipal attorney willneed to determine if the information can be broken down as to what is regular pay vs. what is overtime.
Title 51. Officers Oklahoma Open RecordsAct
Section 24A.7- Confidential Personnel Records of Public Body
Cite as: O.S. §, __ __
A. A public body maykeep personnel records confidential:
1. Which relate tointernal personnel investigations including examination and selection materialfor employment, hiring, appointment, promotion, demotion, discipline, orresignation; or
2. Where disclosurewould constitute a clearly unwarranted invasion of personal privacy such asemployee evaluations, payrolldeductions, employmentapplications submitted by persons not hired by the public body, and transcriptsfrom institutions of higher education maintained in the personnel files ofcertified public school employees; provided, however, that nothing in thissubsection shall be construed to exempt from disclosure the degree obtained andthe curriculum on the transcripts of certified public school employees.
B. All personnel recordsnot specifically falling within the exceptions provided in subsection A of thissection shall be available for public inspection and copying including, but notlimited to, records of:
1. An employmentapplication of a person who becomes a public official;
2. The gross receipts ofpublic funds;
3. The dates ofemployment, title or position; and
4. Any finaldisciplinary action resulting in loss of pay, suspension, demotion of position,or termination.
C. Except as mayotherwise be made confidential by statute, an employee of a public body shallhave a right of access to his own personnel file.
D. Public bodies shallkeep confidential the home address, telephone numbers and social securitynumbers of any person employed or formerly employed by the public body.
Isn’t there a constitutional provision that applies?
Yes. The Oklahoma Constitution at Article 23, Section 10 provides that wages and emoluments (fringe benefits) for an officer, elected or appointed, may not be changed after his election or appointment. See Edmondson v. Oklahoma Corporation Commission, 971 P.2d 868 (Okl. 1998).
What if the elected officials duties change?
This constitutional rule applies even when the office's duties are decreased unless the ordinance or resolution establishing the salary provides that payment of the salary is conditioned on the performance of specified duties. In other words, the change in salary must occur automatically under the provisions of the ordinance or resolution adopted prior to the election of appointment of the officer.
What if the salary changes automatically?
A governing body may provide for step raises or other incremental increases in salary for elected officers if the increase occurs automatically without any further need for decision making by the governing body. For example, an ordinance may provide that increases will be in the same percentage as any increase in the Consumer Price Index or the average percent or amount of increase for other employees of municipalities.
Why is the timing of a salary increase important?
Only those officers elected or appointed after the ordinance is enacted may benefit from any increase so provided. When an incumbent is re-elected, he may receive any increase enacted prior to his re-election.
What about “extra duties”?
Each statutory form of government allows the clerk and treasurer to perform extra duties, which are not related to their statutory duties. The elected clerk and treasurer may receive additional compensation for these "extra duties". This must be established by ordinance. This does not apply to governing body members.
Why is the wording of the ordinance so important?
The ordinance establishing the "extra duties” must distinguish between the official and unrelated duties and establish by ordinance the salary for the unrelated duties, if any, as an item of compensation separate from the salary for official duties. Is the clerk and treasurer as an employee for non-statutory duties? When the ordinance establishing pay for unrelated duties is written correctly, (see the example in the OML Handbook) the clerk or treasurer will perform their non-statutory duties as an employee rather than as an officer of the municipality. The compensation for those unrelated duties, therefore, may be changed during a term of office by amending the ordinance, which fixed the salary. As a true employee of the municipality, the clerk or treasurer must function in the same manner as all other personnel.
Is there an exception for the statutory council manager form of government?
For a possible legal exception for clerks and treasurers in the statutory council manager form of government to receive compensation changes in their statutory duties see Attorney General Opinion 85-13. It should be noted that the Oklahoma Supreme Court has not ruled on this point of law.
A. Aldermanic Form of government is found at 11 O.S. §§9-101 to 9-118.
B. Council-Manager form of government is found at 11 O.S. §§10-101 to 10-121.
C. Strong-Mayor-Council from of government is found at 11 O.S. §§11-101 to 11-125.
D. Town from of government is found at 11 O.S. §§12-101 to 12-114.
A. What is the rule for holding more than one office within the municipality?
11 O.S. Section 8-106 applies to holding more than one office within a municipality. If anyone wishes to hold another office or position in the municipality, they can if the governing body approves it. This of course includes clerks and treasurers who may be paid for such additional duties.
B. Is there a special rule for governing body members? Yes. If a member of the governing body holds another municipal office or position, they cannot be paid for anything other than their elected duties.
C. What are some examples? This means that a governing body member could serve as city manager, chief of police, office manager, volunteer firefighter, etc., but only if they are paid nothing for the additional duties. It is unknown if a police or fire pension would violate the "shall not receive compensation for service" provision of Section 8-106.
D. Is there a different rule for holding another office outside the municipality? Yes. If an officer of a municipal government wishes to hold another office outside of the local government, the arrangement must be allowed under 51 O.S. Section 6.
A. What is the general rule? No elected or appointed official shall appoint any person related by blood or marriage within the third degree to any governing body member or to himself. If the employee is already in the service of the municipality he or she may continue to serve and be promoted. 11 O.S. Section 8-106.
B. Does this apply to who the voters elect? No. The nepotism statute does not stop the people from electing as many members of the same family as they desire.
C. What is the easiest way to understand the third degree? The Nepotism chart in the OML Handbook has been reproduced by the Oklahoma Attorney General and is the best way to understand which relatives are within the third degree. The most notable relative that can be hired are first cousins.
D. Is there a special provision for public trusts? In addition to Section 8-106 the statutes at 21 O.S. Section 481 to 487 may apply to public trusts.
A. What is the general rule? No municipal officer or employee, or any business of the officer or employee or his or her spouse has a proprietary interest shall: (1). Sell, buy or lease real or personal property from the municipality; (2) contract with the municipality; or (3) buy, barter or acquire any bonds, warrants, or other evidence of municipal indebtedness. 11 O.S. Section 8-113.
B. What is the definition of employee under the Act? “Employee” means a person employed more than 10 hours a week for more than 13 consecutive weeks AND who enters into, recommends or participates in the decisionto enter into the prohibited transaction.
C. So, employee’s don’t mean all employees? No. Any question conflict of interest question involving an employee will depend on the job duties and authority of theemployee to make the decision to transact business.
D. What is the special rule for the business of the officer, employee or spouse? For the business of the officer, employee or spouse to qualify, the officer, employee or spouse must own more than 25% of the business or of the company stock or any percentage which constitutes a controlling interest. If the stock is in a blind trust it is not counted to reach the 25% or controlling interest.
E. Does this rule apply to citys or towns under 2,500 in population? No. There is an exception for any municipality of fewer than 2,500 for any officer or employee who has a proprietary interest in a business which is the only business of that type within 10 miles of the municipality. Any single activity shall not exceed $500 and shall not exceed $10,000 for all activities in any calendar year.
F. Is there a special rule for financial institutions? Yes. There is an exception for any officer, director or employee of a financial institution to serve on a board of a public body.
A. Is there a state statute on right to recall? No. There is no right to "recall" a municipal official except if a municipality has a Charter that has a recall provision. There is no general state statute that allows recall.
B. Is there a special rule on absences? Yes. A governing body member can be removed by operation of law if he or she is absent for more than one-half of all meetings of the governing body within any four consecutive months. Regular and special meetings of the governing body are counted. Other non-council meetings such as the PWA are not included in the computation. "Month" refers to a calendar month. 11 O.S. Section 8-108.
C. Are there any state statutes on removal of elected officials? Yes. There are legal steps to remove a person from elected office no matter what the population or form of government. The first is Ouster by Action found in 51 O.S. Section 91 and requires the action of the Attorney General. The second is Removal of Officers found in 22 O.S. Section 1181 and a District Attorney must begin the proceedings. The few cases where an AG or DA has actually removed persons from office have been in the case of serious criminal wrongdoing.
D. What about a final judgment for an elected official? A vacancy results when a final judgment is entered against the office holder for breech of his official bond or upon his final conviction for an infamous crime or any offense involving a violation of his official oath. 51 O.S. Section 8.
There is one thing that allmunicipalities in Oklahomawill at some point have in common; they will face a vacancy in the office of anelected official.
How your municipality will dealwith the vacancy will vary from one situation to another. Below is a generaloverview on how vacancies occur and how to fill the vacancies. (Moredetailed information can be found in the OML Handbook for City & Town Officials;section B-20 to B-25.)
Title 11 O.S. § 8-109 – Vacancies inOffice, offers guidance on how the governing body is to resolve a vacancy inoffice.
The governing body shall appoint bya majority vote of the remaining members, a person to fill the vacancy untilthe next general election or the next biennial town meeting (if themunicipality is subject to the Town Meeting Act). The person that isappointed to fill a vacancy must run in the next election to fill the remainderof the unexpired term left by the vacancy.
If the governing body does notappoint someone to fill the vacancy within 60 days, they must then call for aspecial election for the purpose of filling the vacancy for the duration of theunexpired term et. al.
If the vacancy is in the office ofthe mayor, you must follow your charter (if applicable) or statutes for yourform of government.
StatutoryAldermanic Title 11 O.S. § 9-111
StatutoryCouncil-Manager Title 11 O.S. § 10-105
Strong-Mayor-Council Title 11 O.S. § 11-104
StatutoryTown Title 11 O.S. § 12-105
Question: Our town has had to reduce our workforce due to the economic decline. As the elected clerk-treasurer, can I be appointed or hired to be the Town Administrator to do all the ‘other’ jobs in the office?
Answer: The short answer is yes! A clerk/treasurer can have special statutory duties as the governing body ordains (11 O.S. § 12-106 and 12-109.) It would be important for the governing body to create the “other” duties by ordinance. In the ordinance it should state all the non-statutory duties you would be responsible for as well as the pay for these additional duties.
Please note: The Oklahoma Constitution at Article 23, Section 10 provides that wages and emoluments (fringe benefits) for an officer, elected or appointed, may not be changed after his election or appointment. See Edmondson v. Oklahoma Corporation Commission, 971 P.2d 868 (Okl. 1998).
Help! We failed to get ourNotice of Election Resolution in the paper as statutorily required by Title 11O.S. 16-101. What do we do now??
If the Notice of Election was notpublished in accordance to Title 11 O.S. 16-101 the municipality will not beable to hold the election in April. What will happen is the currentcouncil will need to call for a special election to be in accordance with thelaw.
The current council will beconsidered ‘hold-over’s’ because, elected municipal officials serve until theirsuccessor(s) are elected and qualified.
If the clerk is elected to the position, he or she must meet the requirements of an elected official as outlined in Title 11 O.S. Sec. 8-101; they must be a resident and registered voter of the community in which they wish to serve.
However, it the city/town has taken the question to a vote of the people, “Shall the Clerk or Clerk-Treasurer be appointed by the mayor, (with the approval of the council, board of trustees)?” If the measure passes, the residency requirement no longer applies.
If the council or board of trustees decide that they would like the clerk or the clerk-treasurer to be a resident of the city/town, they must pass an ordinance as authorized in Title 11 O.S. Sec. 22-127, in which appointed officers or employees must reside in the municipality.
No - except for employees described below.
What if an employee wants to buy the surplus property?
Special rules apply to purchase by an employee. If an employee is going to buy surplus property of the municipality or public trust, then he or she can only do so if the surplus property is offered for sale to the public after notice of the sale is published. 11 O.S. Section 8-113(C)
No. It simply means that the municipality has no further use for the property. The municipal can make a finding that the item is surplus and then follow local procedures to sell it.
These surplus property principles may or may not apply to the sale of municipal real property. Some Oklahoma case law says the sale of real property "held in trust for the public" (usually purchased by tax money or G.O. bonds) must be declared surplus or abandoned by the governing body and can only be sold by a vote of the people. You should consult your legal advisor if selling real property.
Yes. Title 11, Sections 35-201 through 205 requires a vote of the people in order to sell a utility with a fair market value exceeding $10,000.
Yes. The above statute creates an exception to a voteof the people if the sale is to the state or county or to a public trust ofwhich the municipality is the sole beneficiary. If the municipality has acharter provision on this topic, the charter will control.
Does this statute define “utility”?
Yes. Utilities are defined to include municipallyowned parks, lakes and recreation areas.
So, does all this mean a municipality can give or donateits surplus property to another?
No. A city of town absolutelycannot give a gift under the Oklahoma Constitution at Article 10, Section17. In addition, under general fiduciary legal principles, the governingbody has a duty to receive fair market value for surplus property. Therefore, you should be careful about how you sell surplus property.
The Constitution makes no exception for another unit ofgovernment – public property simply cannot be donated or given away.
Then, if I can’t give it away, is it impossible to conveysurplus property to someone else?
While surplus property cannot be given away – the OklahomaSupreme Court has determined that a public body can enter into an agreement todo a joint project or to exchange mutually beneficial promises.
Yes. Burkhardt v.City of Enid, 771 P.2d 608 and State of Oklahoma ex rel. Brown v. City of Warr Acres, 1997 OK 117.
Now we are getting somewhere. How is this done?
The court has held that there must be consideration (enforceable promises or benefits) plus accountability in the contract to make sure the public is getting value for the “deal”.
No. The Oklahoma Constitution at Article 10, Section 14 states that a city or town can only contract with another party for a municipal public purpose – which is a term of art that must be understood as a technical legal principle.
Yes. If a city or town may perform a function that serves a municipal public purpose, the municipality may contract with a private entity for the performance of the service. It must be a true business arrangement.
Yes. This may include providing in-kind services, swapping one piece of equipment for one owned by the county, or any other loan or trade of equipment or supplies so long as the value received matches the value given. Contracts between public entities are specifically authorized by the Interlocal Cooperation Act, 74 O.S. Section 1001 and following.
It is leave time that combines sick leave, holidays, mental health days, vacation time and the like into a pool of leave time that can be used as employees wish.
Q: So, what is the potential problem?A: Under Oklahoma law, a problem may arise since vacation leave is treated differently from other types of leave.
So, what is the bottom-line on Paid Time-Off (PTO)?
A: If vacation leave is rolled into paid time-off, how is it determined which of those hours constitutes vacation leave? Or, does the entire combined leave time fall under Section 165.3 since all of the combined hours are eligible to be used for vacation? If so, all PTO would have to be cashed out at separation from employment, not just the vacation time.
Wages are defined at 40 O.S. Section 165.1(4) as “compensation owed by an employer to an employee for labor or services rendered, including salaries, commissions, holiday and vacation pay, overtime pay, severance or dismissal pay, bonuses, and other similar advantages agreed upon between the employer and the employee . . . . “ (Emphasis Added).
Since vacation leave is specifically defined as wages and the statute provides for the ambiguous “other similar advantages” – the question arises how PTO would be treated at termination. We could find no Oklahoma case addressing this issue.
Vacation leave must be cashed out at termination of employment due to 40 O.S. Section 165.3. Key legal authority on this issue is Biggs v. Surrey Broadcasting Co., 811 P.2d 111 (Ok.App.1991) and Op.Atty.Gen. No. 85-47 (May 13, 1985). Regarding the different posture of sick leave, unused sick leave is not required to be cashed out unless required by the employer’s policy. Simpson v. City of Blanchard, 797 P.2d 346 (Ok.App.1990).
Yes. Many municipal employershave a “Shared Leave” policy. A “Shared Leave” policy allows employees todonate leave time to employees who are sick or injured and have run out of sickleave. However, not all polices are the same. Some municipalitiesallow both vacation and sick leave to be donated while others only allowemployees the option of donating vacation leave.
Q: How does Paid Time-Off disrupt thesepolices?
A: For those employers’ who only allowthe donation of vacation time, if all the hours are combined, sick leave iscomingled with other leave time and it ends up being available for donation toanother employee. Thus, sick leave looses its unique character as onlyavailable for use due to illness/injury since it is now available for donationto a fellow employee.
Question: At our last meeting a motion was made by a member of the council, after a long period of silence and no second, the question was raised whether the motion died due to the lack of a second. The motion was then made again and a member of the council seconded the motion. Was that legal?
Answer: By statute the Mayor is the facilitator of the meeting. As the facilitator/presider he/she is the one who declares whether a motion has died. There would be no ‘re-motion’ because the facilitator (mayor) did not declare the motion ‘dead.’ The motion was simply restated.
Statutes declaring the mayor presides over meetings
Title 11 O.S. Section § 9-105 Aldermanic Form of Government
Title 11 O.S. Section § 10-105 Council-Manager Form of Government
Title 11 O.S. Section § 11-105 Strong-Mayor Form of Government
Title 11 O.S. Section § 12-105 Town Form of Government
Question;Last night a reporter came to their monthly council meeting. He put a tape recorder on the podium for the entire length of the meeting. Is there any way the council can request the reporter not to use that information that he taped for his news story? Does the council have any rights to prevent him from using the tape?
Answer;Any person attending a council meeting can record or video-tape the meeting, as long as they do not interfere with the conduct of the meeting. (Title 25 O.S. Sec 312 (C)) SECTION 312. WRITTEN MINUTES REQUIRED - OPEN TO PUBLIC A. The proceedings of a public body shall be kept by a person so designated by such public body in the form of written minutes which shall be an official summary of the proceedings showing clearly those members present and absent, all matters considered by the public body, and all actions taken by such public body. The minutes of each meeting shall be open to public inspection and shall reflect the manner and time of notice required by this act.B. In the written minutes of an emergency meeting, the nature of the emergency and the proceedings occurring at such meeting, including reasons for declaring such emergency meeting, shall be included.C. Any person attending a public meeting may record the proceedings of said meeting by videotape, audiotape or by any other method; providing, however, such recording shall not interfere with the conduct of the meeting.
The League is preparing its election calendar for OML members for the Spring 2009 municipal elections. The calendar containsthe relevant statutory dates, deadlines and procedure for holding yourelection. In our contacts with the State Election Board, their materialscontain an old website address for confirming the location of your officialcorporate limits. To find your municipal limits go to www.csa.ou.edu. Once there, on the left side of the webpage click on “Data, Products & Tools”. A dropdown box will appear,click on “Maps”. Choose your city/town.
Identifying the exact municipal limits is vital to knowwhether sales tax or Ad Valorem Tax is correctly being collected, whether onlymunicipal citizens are voting in your election and whether recentannexations/de-annexations have been officially reflected in the State’s records. If you have questions on taxes contact Troy Frazier at the Tax Commission,405-319-8200 or [email protected] To file ordinances or make any corrections mail them to: OklahomaTax Commission, Ad Valorem Division, P.O. Box 53248, Okc, OK 73152-3248.
Check our website here for the latest information and for a complete FAQ section.
During this economic downturn municipalities are facing record budget deficits whichleaves cities/towns no choice but to cut their budget. This has spurred many calls about reductions in force (RIF)and furloughs of municipal employees. Itis very important to make sure the decisions are fair and are applied acrossthe board. To insure strict compliancewith all labor laws we have compiled a list of essential factors;
· Employeemanuals, personnel policies, and any labor agreements should be reviewedthoroughly for any RIF/layoff policy; if a policy exists it should be followedaccordingly.
· ARIF/layoff plan should be implemented prior to anyterminations.
· Determinethe amount of work force needed to meet your required level of service(s).
· Evaluateemployees using objective criteria
· Takein consideration the employees state; avoid comments like “Now you will havemore time for your family” or “At your age you should have more rest.”
· IMPORTANT: If theemployee(s) in question are currently part of a collective bargaining agreement,it is essential to follow any notice or bargaining requirements set forth inthe agreements.
Other options in lieu of forced reductions;
· Voluntary ormandatory furloughs: Furloughs involve non-duty and non-pay statusfor budget reasons. The employeecontinues to work on a fairly regular basis, and allows employers to schedulecertain days/hours off; example, a non-exempt employee could be required to take every other Friday off, without pay.
· Reduced-hour schedules: This involves apermanent or semi-permanent reduction in the employees normal working hours;example a non-exempt employee normal workweek is 5-day/40 hours could bereduced to 4-day/32 hours.
· Salary Freezes: This freezes all non-exempt employees salaryat the current rate they are receiving.
When reducing the hours or salary of exempt employees the FLSA has special requirements. For recent guidance callOML for the May 2010 issue of the Labor Bulletin or visit the below web link.
If you have any further questions you can contact the
US Department of Labor at the following web link: (http://www.dol.gov/WHD/flsa/FurloughFAQ.pdf) or your TortLiability Insurance carrier for their input on your municipalities situation.