Open Meeting Act Update on Virtual Meetings
Temporary Provisions for teleconferencing and videoconferencing of public meetings have now expired.
On March 18th, 2020 Governor Stitt signed into law Senate Bill 661 which temporarily modified the Oklahoma Open Meeting Act to allow for teleconferencing as a method of holding public meetings that are subject to the Act. The modifications allowed under the law expired on November 15, 2020.
Teleconferencing and video conferencing are still allowed under the provisions of 25 O.S. §307.1 as it existed prior to the passage of SB661. That language states as follows:
A. A public body may hold meetings by videoconference where each member of the public body is visible and audible to each other and the public through a video monitor, subject to the following:
1. a. except as provided for in subparagraph b of this paragraph, no less than a quorum of the public body shall be present in person at the meeting site as posted on the meeting notice and agenda,
b. a virtual charter school approved and sponsored by the Statewide Virtual Charter School Board pursuant to the provisions of Section 3-145.3 of Title 70 of the Oklahoma Statutes shall maintain a quorum of members for the entire duration of the meeting whether using an in-person site, videoconference sites or any combination of such sites to achieve a quorum;
2. The meeting notice and agenda prepared in advance of the meeting, as required by law, shall indicate if the meeting will include videoconferencing locations and shall state:
a. the location, address, and telephone number of each available videoconference site, and
b. the identity of each member of the public body and the specific site from which each member of the body shall be physically present and participating in the meeting;
3. After the meeting notice and agenda are prepared and posted, as required by law, no member of the public body shall be allowed to participate in the meeting from any location other than the specific location posted on the agenda in advance of the meeting;
4. In order to allow the public the maximum opportunity to attend and observe each public official carrying out the duties of the public official, a member or members of a public body desiring to participate in a meeting by videoconference shall participate in the videoconference from a site and room located within the district or political subdivision from which they are elected, appointed, or are sworn to represent;
5. Each site and room where a member of the public body is present for a meeting by videoconference shall be open and accessible to the public, and the public shall be allowed into that site and room. Public bodies may provide additional videoconference sites as a convenience to the public, but additional sites shall not be used to exclude or discourage public attendance at any videoconference site;
6. The public shall be allowed to participate and speak, as allowed by rule or policy set by the public body, in a meeting at the videoconference site in the same manner and to the same extent as the public is allowed to participate or speak at the site of the meeting;
7. Any materials shared electronically between members of the public body, before or during the videoconference, shall also be immediately available to the public in the same form and manner as shared with members of the public body; and
8. All votes occurring during any meeting conducted using videoconferencing shall occur and be recorded by roll call vote.
B. No public body shall conduct an executive session by videoconference.
Remote attendance may be more practical through teleconferencing in most circumstances. But in each of these options, teleconference or videoconference, a majority of the members must be present at the posted location of the meeting site. If attendance is by video conferencing, then a provision for public attendance must be made at the remote video conferencing site, and under subsection 4 the location of the videoconferencing site may be more limited to meet those requirements.
Since a majority of the body must be present at the site, then if the audio disconnects due to a problem or issue, there is no requirement to suspend the meeting until the audio is restored. The meeting must be recorded by written or electronic means. All votes occurring during any meeting utilizing teleconference or videoconference shall occur and be recorded by roll call votes.
The requirement to post notice of meetings at the principal office or meeting location is back in place. The public body is required to make the notice of a public meeting available to the public in the principal office of the public body or at the location of the meeting during normal business hours at least twenty-four (24) hours prior to the meeting.
OML has shared that they have met with a number of policymakers and interest groups on this topic. From their communications, it is unlikely at this time that there will be a special session. OML has been negotiating a long-term remote meetings bill and if an agreement could be reached then it should sail through quickly once the legislature convenes in regular session in February. In the meantime, the pre-Senate bill 661 version of the Open Meetings Act should be observed in meetings of members of your governing bodies. OML is asking municipalities to submit their thoughts and ideas on what they want to see in the new Open Meeting/Open Records language. Contact information is below.
OPEN MEETING ACT CHANGES EXPAND TELECONFERENCING
On March 18th, 2020 Governor Stitt signed into law Senate Bill 661 which temporarily modifies the Oklahoma Open Meeting Act to allow for teleconferencing as a method of holding public meetings that are subject to the Act. The modification will extend until the State of Emergency declared by Governor Stitt is terminated or November 15, 2020, whichever date occurs first.
The new law adds Teleconferencing as an option and clarifies the requirements for videoconferencing.
"Teleconference" means “a conference among members of a public body remote from one another who are linked by telecommunication devices and/or technology permitting auditory communication between and among members of the public body and/or between and among members of the public body and members of the public.”
"Videoconference" now means “a conference among members of a public body remote from one another who are linked by interactive telecommunication devices or technology and/or technology permitting both visual and auditory communication between and among members of the public body and/or between and among members of the public body and members of the public. During any video conference, both the visual and auditory communications functions shall attempt to be utilized.”
The language changes in the bill provide for:
Relaxation of In-Person quorum: Members of a governing body (City Council, Town Board, Public Trust, etc.) may attend a meeting:
Remote by Teleconference
Remote by Videoconference
By attending at the physical location of the meeting, if there is one.
All or even a majority (quorum) may attend remotely through one of the two options. The Bill also allows a meeting to be held remotely and without a physical location.
Requirement to post governing body membership attendance methods: In addition to regular notice posting requirements (date, time, location, matters to be discussed) the notice must identify whether teleconferencing or videoconferencing will be used as well as how each member plans to attend the meeting (video conference, or teleconference, or in-person). Once the meeting notice is posted, governing body members cannot change their method of attending the meeting (i.e. a member designated to attend in person cannot then attend by teleconference or video conference). The only exception is that a member designated to attend remotely may instead attend the meeting in person (so long as a physical location for the meeting was listed).
Public access to all documents: All documents shared electronically with governing body members during the meeting must be immediately available to the general public in the same form as they were shared with the members of the governing body. Many cities and town provide Agenda materials in paper form. However, a more convenient method to address this requirement may be to provide agenda material electronically and through the city or town website.
General Public Attendance Required via audio or video conference: Members of the general public who attend the meeting remotely must be allowed to participate in the meeting to the same extent that they could if they attended the meeting in-person. This means that, if you allow the public to speak (during citizen comments or during a public hearing item), then those who attend remotely must be given the chance to speak via the teleconference or video conference. If you use Slack, Microsoft Teams/Skype, or GoToMeeting, be prepared to use the large meeting format. Fortunately, these services have offered free expanded licenses for large meetings due to the Coronavirus emergency. See below under “Technical Assistance” for more details and links to free resources.
Audio disconnects: If the audio disconnects due to a problem or issue, the meeting is suspended until the audio is restored.
Recording requirements: The meeting must be recorded by written or electronic means. All votes occurring during any meeting utilizing teleconference or video conference shall occur and be recorded by roll call votes.
Executive Sessions: These are now allowed via teleconference or video conference. The Notice of meeting and the agenda identifying the executive session must identify whether teleconferencing or videoconferencing will be used as well as how each governing body member will attend the session (see #2, above).
Requirement to post Notice of meetings at the principal office or meeting location is suspended: The public body shall not be required to make the notice of a public meeting available to the public in the principal office of the public body or at the location of the meeting during normal business hours at least twenty-four (24) hours prior to the meeting. The suspension of this requirement shall also extend until the State of Emergency declared by Governor Stitt is terminated or November 15, 2020, whichever date occurs first.
Technical Assistance:
All major web conferencing solutions often include screen sharing, document sharing, video sharing through built-in laptop web cams are room cameras, audio conferencing using computer microphones and speakers, and teleconferencing (sometimes referred to as a conference bridge) as a backup solution using phone numbers with a passcode or meeting number.
Rising to the top, 3 providers are offering their enhanced, or paid for versions for free due to the COVID-19 emergency. This includes GoToMeeting, Microsoft Teams (part of Office 365), and Google Hangouts Meet (part of Google G-Suite). Of these, OMAG is already a heavy user of Microsoft’s solution as OMAG has been a long-time adopter of Office 365.
LogMeIn’s GoToMeeting service is offering free “Emergency Remote Work Kits” for municipalities, health care providers, and other non-profit organizations. Information on requesting a free Emergency Remote Work Kit from GoToMeeting is available here.
Microsoft’s solution, called Microsoft Teams, which is part of Office 365, has removed restrictions on the free version for individuals and organizations through January 2021, with support for 250 participants with 10,000 viewers, recording, and screen sharing. They have also added a free 6-month trial of Office 365 E1 which includes this option. Information on Microsoft’s free offerings for the emergency are available here.
Google’s Hangouts Meet tool is also offering free access to the tool, with 250 participants and live streaming to 100,000 viewers, recording, and screen sharing. More information on Google’s offerings during the emergency are available here.
All of these solutions can essentially tick every box above. They allow a meeting organizer to limit members of the public to “View Only”, can temporarily authorize attendees (in this case, members of the public) to speak for the open comments period, allow for members of the public to view the same documents and files, and can record the meeting for later posting on a website or Youtube channel.
OMAG’s recommendation from a technical perspective would be to test the technology with your governing body members in advance of the meeting but on a one-on-one basis, using your local IT resources. OMAG’s IT Department also stands ready to offer advice and assistance by emailing itsupport@omag.org
Contract for Services Other Than Public Construction
Is a Competitive Bidding process required for purchases other that Public Construction Contracts? The Oklahoma Competitive Bidding Act (61 O.S. 101 et seq) applies to public construction contracts and public improvements to public buildings. Those definitions are as follows:
6. "Public construction contract" or "contract" means any contract, exceeding Fifty Thousand Dollars ($50,000.00) in amount, awarded by any public agency for the purpose of making any public improvements or constructing any public building or making repairs to or performing maintenance on the same . . . .;
7. "Public improvement" means 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, . . .;
Application the State Competitive bidding act to Oklahoma statutory cities and towns is specific to public construction contracts or public improvements. Charter cities may establish their own competitive bidding processes that relate to public construction contracts or public improvements as a matter of local concern.[i]
For all other contracts for expenditure of public monies, other legal authority should be consulted. For example, many cities and towns have enacted local ordinances to govern the purchase of supplies, materials, professional services, and other contract services such as Codification, publication of Ordinances, purchase of insurance, hiring of consultants, architects, engineers, or attorneys. Some cities require competitive bidding for supplies and materials. Some cities allow the purchase of such items from vendors who are successful bidders on state purchasing contracts.
For professional services, request for qualification processes are often used, or request for proposal processes are used. Some specialized areas such as insurance services, bond counsel, economic development advisors, employee training consultants, etc . . . do not often lend themselves to competitive bidding processes and are more suited toward a staff negotiation and recommendation process in order to be able to match the individual city’s service needs to what can be offered by a particular consultant or service provider.
. . . where some other building might not; and where professional and personal services of a specialized nature are required, the municipality may better safeguard the public interest by negotiation rather than competitive bidding, because the low bidder might cause the municipality untold damage and loss. The problem is to contract with individuals who are best qualified to and who give promise of, best serving the interest of the municipality and the public.[ii]
For city purchases, other than those specifically covered by the Oklahoma Competitive Bidding Act, each city should refer to their local ordinances and consult with their City Attorney to establish the appropriate purchasing process.
TURKEYS, HAMS, AND HOLIDAY GIFTS
As the holiday season approaches, elected officials generally want to show their appreciation to employees by providing turkeys, hams, or bonuses. Those of us who represent cities and towns have an appreciation for the work done by employees and recognize that for some, provision of a turkey or ham can make a big difference to their families, especially this time of year.
FREE THE FACTS: THERE IS NO CONSTITUTIONAL RIGHT TO BE TOPLESS IN PUBLIC
Original post by Matt Love
There seems to be confusion about whether the 10th Circuit’s opinion in Free the Nipple-Fort Collins v. City of Fort Collins, 916 F.3d 792 (10th Cir. 2019) created a Constitutional right for women to be topless in public. Adding to this confusion was the response by Oklahoma’s Attorney General who stated that the opinion was “not binding” in Oklahoma. The purpose of this post is to clarify what the actual holding was in Free the Nipple, whether that holding is binding in Oklahoma and, finally, to address concerns about possible liability after Free the Nipple.
NO CONSTITUTIONAL RIGHT TO BE TOPLESS IN PUBLIC
The Free the Nipple Plaintiffs tried to establish a Constitutional right for women to expose their breasts in public. They failed. Free the Nipple v. City of Fort Collins, 216 F.Supp.3d 1258 (D. Co. 2016). Plaintiff argued that being topless in public is a form of expression that is guaranteed and protected by the 1st Amendment. They lost on this argument because the exact argument has been considered and rejected by the United States Supreme Court on 2 prior occasions in Barnes v. Glen Theatre Inc., 501 U.S. 560 (1991) and City of Erie v. Pap’s A.M., 529 U.S. 277 (2000). Being topless in public is not inherently expressive activity. As such, laws prohibiting women from being topless in public do not violate the 1st Amendment.
There is no Constitutional right for women to be topless in public.
ALL BREASTS ARE CREATED EQUAL (AT LEAST IN THE 10TH CIRCUIT)
The Free the Nipple Plaintiffs also argued that the City’s topless ban violated the Equal Protection clause of the 14th Amendment because it only applied to women. This was the claim that gained traction and resulted in a favorable ruling at the District Court. That was the ruling that the 10th Circuit was considering in the appeal.
Laws which treat men and women differently can be challenged under the Equal Protection clause. When the law creates a distinction based on gender, Courts will grant no deference to the judgment of the legislature as to whether a law was necessary or appropriate. Courts will require the government to defend its gender-specific law by proving 1) that the law was adopted to serve an important governmental interest and 2) that the means employed in the law were substantially related to serving that interest.
City argued that the female only topless ban served 3 important governmental interests: protecting children, promoting traffic safety, and maintain public order. City argued that the negative impact the public exposure of female breasts would have on each of those important interests justified a female-only topless ban. The core premise of City’s argument was that the negative impact is linked to the inherent physical, social and sexual differences between female and male breasts.
The 10th Circuit rejected this core premise. The Court recognized that there are differences between the breasts of men and women which are rooted in both societal norms and basic biology. To the Court, those societal and biological differences should not be codified in the law because the Court felt the distinction between the breasts of men and women is really rooted in generalizations about “the way women are”. Laws rooted in such generalizations create “a self-fulfilling cycle of discrimination” which perpetuate inequality between the genders. Essentially the Court held that the City’s ordinance was based on generalizations even though the City presented sociological and biological evidence.
Having rejected this core premise, the Court held that the City failed to prove that a female only topless ban substantially served the 3 governmental interests the City cited. The Court found that City presented no evidence that the public exposure of female breasts would actually negatively impact children, traffic or public order. City presented no evidence that the women of Fort Collins were actually preparing to take to the streets en masse and sans tops. To the Court, there was no evidence offered by the City as to why it needed to adopt this ordinance at this time.
There should have been ample evidence, the Court held, since Boulder and Denver had enacted laws which allowed for public displays of female breasts. Since 2 cities had recently enacted ordinances allowing women to be topless in public, there should have been actual evidence of the negative impact on children, traffic or public order from those cities. The lack of evidence of any harmful effects in those two communities was telling, at least to the Court.
Free the Nipple was about equality, not nudity. It did not establish a right for women to be topless in public. Rather, it was a statement from the Court that, when it came to breasts, the Court will not look kindly on laws that only apply to women. The outcome would likely have been much different had the City’s topless ban were gender neutral and/or if the City had produced more concrete evidence as to why they needed to ban topless women for the first time ever in 2015.
NOT BINDING, JUST LIKELY BINDING
Free the Nipple did not hold that the City of Fort Collins’ female only topless ban violated the Equal Protection Clause. The 10th Circuit only held that the ordinance “likely” violated the Equal Protection clause. While this may seem like the type of semantical jiu jitsu that only a lawyer could love, the ruling is actually the result of legal procedure rather than legal gamesmanship.
The Free the Nipple Plaintiffs had obtained a preliminary injunction at the outset of the litigation which prohibited the City from enforcing its new ordinance until the case was fully litigated and a final decision made on the Constitutionality of the ordinance. It was the order granting the preliminary injunction which was appealed to the 10th Circuit. As such, the 10th Circuit was not considering a final ruling on the Constitutional issue.
A preliminary injunction can only be granted if the Court finds that the Plaintiff is likely to prevail on the merits of their claim. Preliminary injunctions are evaluated before the parties have a chance to conduct full discovery on the factual and legal issues. They are granted or denied after a truncated presentation of evidence and argument at a very early stage of litigation. As the name implies, the ruling is preliminary.
When Attorney General Hunter said that Free the Nipple is “not binding” in Oklahoma, he was not questioning the jurisdiction of the 10th Circuit or the supremacy of the Equal Protection clause. Instead, he was noting the legal reality that Free the Nipple was a ruling on a preliminary injunction and not a final ruling on the Constitutionality of such an ordinance.
This does not mean that Free the Nipple is irrelevant. Free the Nipple may not be binding precedent as to whether female only topless bans violate the Equal Protection clause, but the opinion is still precedential as to the legal analysis it employed. As a published 10th Circuit opinion, Judges in Oklahoma will be bound to utilize the Court’s analysis if confronted with a similar Equal Protection challenges on female-specific law.
First, Judges will likely employ a heavy degree of skepticism when evaluating whether the differential treatment of men and women in a law is based on actual differences between the sexes. The Court in Free the Nipple noted the City’s sociological and biological evidence regarding those differences and still concluded that the City was relying on stereotypes and generalizations. If a similar challenge were lodged in Oklahoma, a Court would be hard pressed to employ any less skepticism if the government utilized similar evidence to support a position that the actual differences between men and women justify differential treatment in the law.
Second, Judges will likely require concrete proof of the actual harm that will be inflicted on the public if the challenged law were not in place. Speculation will likely be insufficient and may garner a rebuke as being rooted in the very generalizations and stereotypes condemned by the 10th Circuit. Free the Nipple requires actual proof, not mere speculation.
In this respect, Oklahoma municipalities might have a slight advantage not available to the City of Fort Collins. Two large communities in Colorado had enacted ordinances affirmatively permitting women to be topless in public. The Court expected Fort Collins to bring proof from those cities about the harm wrought on their communities by the presence of topless women. It was telling to the Court that no examples were provided by the City. By contrast, OMAG is not aware of any Oklahoma ordinances permitting women to be topless in public. This could be used as a basis to argue that tangible proof of harm already inflicted would be unavailable in Oklahoma.
Free the Nipple was about what the City did not have – facts. If your municipality is considering a female specific topless ban, OMAG would encourage you document why such an ordinance was needed at that time. Assumptions can be fatal in a gender-based Equal Protection challenge.
CIVIL LIABILITY AFTER FREE THE NIPPLE
Given the ambiguity at to the binding nature of the opinion, what risk exposures exist after Free the Nipple? The first area of concern would be if a municipality were to enact its own female-only topless ban. With no final and binding ruling from the Court, OMAG cannot conclusively state that such a gender-specific ban would violate the Equal Protection clause. Further, as discussed above, there are some subtle differences in Oklahoma that did not exist in Colorado which might make an Oklahoma ordinance more defensible than a Colorado ordinance.
A challenge to such a newly adopted ordinance would not likely be defended by OMAG. Those challenges typically are not lodged as claims for money damages. OMAG’s liability coverage is limited to claims for money damages. If your municipality is considering such an ordinance, you may have defend the ordinance at your expense. OMAG would strongly encourage your municipality to conduct research and document your findings as to why such an ordinance needed to be adopted. This also includes collecting evidence and documentation as to the actual not harmful impact the activity you are prohibiting has or would have on your community.
As for enforcement of existing laws on indecent exposure, Free the Nipple should have little to no impact on law enforcement. The most obvious concern would be a possible false arrest and/or 4th Amendment seizure claim. Free the Nipple made no final determination on the Constitutionality of gender-specific topless bans and has no relevance to gender-neutral indecent exposure laws.
4th Amendment and/or false arrest claims are evaluated based on whether there was probable cause to believe the law was broken. Unless and until the law under which we are citing or arresting a person is declared Unconstitutional, such claims will turn on whether the Officers had a factual basis to established probable cause for issuing the citation.
Further, the fact that the 10th Circuit’s opinion was not a final ruling on the Constitutionality of such a gender-specific law should mean that officers will be shielded from personal liability in a civil rights claim thanks to Qualified Immunity. A public official can only be held personally liable if they are found to have violated a clearly established Constitutional right. A right is not clearly established unless existing precedent places the Constitutional questions “beyond debate.” The question of whether female only topless bans violate the Equal Protection has not been answered by the 10th Circuit (or the Supreme Court). The only way that issue could be “beyond debate” without a 10th Circuit or Supreme Court ruling on point would be if the weight of the caselaw from other Circuits made it clear that such a gender-specific law would be Unconstitutional.
As it turns out, several other Circuits have addressed whether female only topless bans violate the Equal Protection clause. As it turns out, every Circuit which has issued a final ruling on that question has ruled that female only topless bans do not violate the Equal Protection clause. U.S. v. Biocic, 928 F.2d 112 (4th Cir. 1991), Tagami v. City of Chicago, 875 F.3d 375 (7th Cir. 2017) and Free the Nipple-Springfield v. City of Springfield, 923 F.3d 508 (8th Cir. 2019).
The United States Supreme Court could weigh in on this issue if it accepts an appeal from a ruling out of the New Hampshire Supreme Court in State v. Lilley, 204 A.3d 198 (N.H. 2019) (finding no Equal Protection violation for a female only topless ban). The Court accepts very few appeals, so it is unlikely the Court would accept Lilley (especially since it joins the chorus of final rulings which all hold that female only topless bans do not violate the Equal Protection clause). We will know in a few months whether they accepted or rejected that appeal.
Finally, there is a potential cause of action for discriminatory and selective enforcement of the law. Whren v. U.S., 517 U.S. 806 (1996). Whren holds that 4th Amendment claims are about probable cause and not discriminatory intent. If probable cause otherwise exists for an arrest, then there is no 4th Amendment violation. Discriminatory enforcement claims must, therefore, be brought under the 14th Amendment (Equal Protection) rather than the 4th Amendment. Such a claim requires proof of an officer’s discriminatory intent on top of a showing of a discriminatory impact. To date, OMAG is aware of no successful gender profiling challenges.
Oklahoma Computer Crimes Act
Several years ago, the Athletic Director for Tulsa Public Schools made headlines over accessing an employee’s private e-mail account. According to police reports, the Athletic Director, and two people who worked for her, admitted to the school district’s attorney, that they found the employee’s password and accessed her personal e-mail account. Subsequently, the Chief of Tulsa Public School Police Department investigated this issue and recovered an envelope of the employee’s e-mails, including one labeled attorney/client privilege. The Athletic Director was charged in federal court with embezzlement. While these charges were unrelated to the e-mail issue, this situation emphasizes that accessing an employee’s personal e-mail account is serious business.
The Oklahoma Computer Crimes Act addresses computer crimes and is codified in 21 O.S. §1951-1959. Among other things, the Act prohibits the following:
Willfully, and without authorization, gaining or attempting to gain access to and to damage, modify, alter delete, destroy, copy, make use of, disclose, or take possession of a computer, computer system, or computer network.
Willfully, and without authorization, gaining or attempting to gain access to a computer, computer system, or computer network.
Willfully using a computer, computer system, or computer network to annoy, abuse, threaten or harass another person.
Municipal attorneys should ensure that their clients have comprehensive policies and procedures that address computer activities and access. The policies should address systems and devices owned by the municipality, as well as the employee. Care should be taken to ensure that supervisors are not exceeding their authority and that employees are well-informed about their responsibilities regarding municipal systems and e-mail accounts.
Annual Auditing Requirements
11 O.S. §17-105 addresses the requirements for an annual audit. For municipalities with an income of $25,000.00, subsection A of the statute provides as follows:
The governing body of each municipality with an income of Twenty-five Thousand Dollars ($25,000.00) or more to its general fund during a fiscal year shall cause to be prepared, by an independent licensed public accountant or a certified public accountant, an annual financial statement audit to be conducted in accordance with auditing standards generally accepted in the United States of America and "Government Auditing Standards" as issued by the Comptroller General of the United States. Such audit shall be ordered within thirty (30) days of the close of each fiscal year. Copies shall be filed with the State Auditor and Inspector within six (6) months after the close of the fiscal year in accordance with the provisions of Sections 3022 and 3023 of Title 68 of the Oklahoma Statutes and with the governing body of the municipality.
Subsection B of this statute addresses municipalities with a population of less than 2,500. It provides in part:
The governing body of each municipality with an income of Twenty-five Thousand Dollars ($25,000.00) or more to its general fund during a fiscal year and with a population of less than two thousand five hundred (2,500) as of the most recent Federal Decennial Census, and for whom an annual financial statement audit is not required by another law, regulation or contract, shall cause to be prepared, by an independent licensed public accountant or a certified public accountant, an annual financial statement audit in accordance with auditing standards generally accepted in the United States and Government Auditing Standards as issued by the Comptroller General of the United States, or an agreed-upon-procedures engagement over certain financial information and compliance requirements to be performed in accordance with the applicable attestation standards of The American Institute of Certified Public Accountants.
The penalty for failing to file the annual audit is set out in 11 O.S. §17-107 and provides that if the audit is not filed, the State Auditor is required to notify the Oklahoma Tax Commission which is then required to withhold its monthly allocation of gasoline taxes until the audit is filed. If it is not filed within two (2) years after the close of the fiscal year, then the funds withheld are required to be submitted to the County for use in the county highway fund.
One issue occasionally overlooked by municipalities is the statutory requirement to publish a notice of availability of the annual audited financial statements for public inspection (“Notice of Availability”).These provisions are addressed in 11 O.S. §17-113.The Notice of Availability is required for all municipalities subject to the audit requirements set forth in 11 O.S. §17-105, unless they have a charter provision that sets forth the manner and procedure for publication.The Notice is also required to be published in a newspaper of general circulation.
Chief's Sale
Is it time to clean out your Police Department’s property room? 11 O.S. §34-104 provides for the disposition of unclaimed personal property, money, and legal tender. It allows Chiefs of Police to dispose of property, money and legal tender if the owner is unknown or has not claimed it, if it has been in the custody of the Chief for at least ninety (90) days, and it is no longer needed as evidence or for any other purpose in connection with litigation. The process for disposing of personal property is set forth in Subsection B and provides as follows:
The chief of police shall file an application in the district court in which the situs of government of the municipality is located requesting the authority of the court to conduct a sale of the personal property which has a fair market value of more than its face value. The chief of police shall attach to the application a list describing the property including any identifying numbers and marks, the date the property came into the possession of the chief of police, and the name of the owner and the person in last possession, if different, and the address of the person, if known. The court shall set the application for hearing not less than ten (10) days nor more than twenty (20) days after filing of the application.
If the property has an actual or apparent value of more than $250.00, then written notice must be sent to the owner at the address listed in the application at least ten (10) days in advance of the hearing. If the property has an actual or apparent value of more than $500.00 and written notice cannot be sent to the owner, it must be published in a newspaper of general circulation, as well as posted where municipal notices are posted and two other public places in the municipality. The notice must contain a brief description of the property and the place and date of the hearing.
If an owner does not appear at the hearing, the Court may enter an order authorizing the donation of property if it has a value of less than $500.00, sale to the highest bidder after five (5) days’ notice of the sale, transfer for sale by internet or other electronic means, or any other appropriate means such as destruction. Importantly, a return of donation or sale must be made by the Chief and the Court must order vesting of the title to the property in the recipient or purchaser. The proceeds of the sale, less court costs and other expenses must be placed in the general fund.
The process for disposition of money or legal tender is similar to that of personal property except that the application must provide for deposit into the general fund. Notice provisions are set forth in Subsections B and E of the statute. Disposition of dangerous or deadly weapons may be handled through an application to the Court and the order must provide for destruction, sale or disposition.
Disposition of property in ways that are consistent with the provision of state statutes is important to avoid municipal liability.
Professionalism
An article was published in the Tulsa Lawyer by attorney S. Douglas Dodd regarding the compression of time for attorneys created by letters, faxes, phone calls, e-mails, and expedited delivery services. In this article, Mr. Dodd spent some time discussing the now old-fashioned letter. He noted that:
Not that long ago, I guess nearly three decades or so, if I received a letter from opposing counsel about a litigation matter, it was on paper, arrived in a sealed envelope and was delivered by the United States Postal Service. The receipt of even the harshest or angriest communication from another lawyer came with the expectation that a written response, even if written quickly, would not get back to the first lawyer for a couple of days. I can remember feeling that I had time to read the letter carefully, sometimes read it several times, call my client, mail a copy to my client, wait for him, her or it to receive and review it, speak with the client by phone, even discuss the most troubling missives with other lawyers in my firm about how the letter should be reviewed and frame an appropriate response for sharing with and approved by the client. In those days, we didn’t really expect responses to letters before days had passed.
In the article, Mr. Dodd went on to discuss the role that e-mails and text messages now play in the practice of law. He compared attorneys to Pavlov’s dog and observed that:
In addition to other attorneys, many of our clients have come to expect immediate receipt of and response to transmission of written communications. All this additional communication ability is actually a good thing, but we should guard against expecting too much speed from the speedy new methods. I don’t believe that all of this increase in speed of communications has improved the quality of our services as attorneys. Our whole world seems to be on a new time frame, where failure to immediately hit “Reply,” and send an email back enrages some senders…I contend we need to take some time before responding to hot, harsh, or demanding missives from other attorneys…long enough to consider our client’s position, their goals and objectives, the law, ethics, civility and yes, professionalism…If we can do it, I believe we should try to slow down the communications just enough to allow real thought to precede typing (emails) or texting.
The article written by Mr. Dodd is a good reminder about the importance of professionalism and civility in electronic communications.His observations, though, are even more instructive to attorneys representing Oklahoma Cities and Towns.Municipal attorneys are constantly bombarded by electronic communications from elected officials, City or Town Managers, employees, and citizens.Most of the senders expect an immediate response and become frustrated by the attorney’s inability to rapidly answer a question that may require both research and reflection.Mr. Dodd’s wisdom about not rushing an answer should be embraced by those representing Cities and Towns and the necessary time, attention, and research should be conducted prior to responding to a question that may be more complex than it initially seems.
First Time Elected or Appointed Officer Training
On November 1, 2005, a law requiring training for first-time elected or appointed municipal officers took effect. Since then the law has been amended three (3) times. Failure to comply with the mandated training results in the elected or appointed official ceasing to hold office beginning at the next scheduled meeting of the governing body following the first-year anniversary of the person taking office. 11 O.S. §8-114.A provides that:
Each person elected or appointed for the first time as an officer of a municipality as defined by paragraph 6 of Section 1-102 of this title, shall be required within one (1) year after taking the oath of office to attend an institute for municipal officials.
As a general rule, the Oklahoma Municipal League and other municipal organizations are very good about informing newly elected officials about this statutory requirement. However, a legal representative of a City or Town should be aware of this requirement and should remind elected and appointed officials of the city of town being represented of this statutory requirement.
Municipal Officer is defined in 11 O.S. §1-102. Subsection 6 provides in pertinent part:
“Officer or official” means any person who is elected to an office in municipal government or is appointed to fill an unexpired term of an elected office, and the clerk and the treasurer whether elected or appointed.
The newly-elected officials training was discussed briefly in the Court of Civil Appeals case of Riding In v. Cheatham, 2007 OK CIV APP 102. In Riding In, the Plaintiff/Appellant, was informed in writing by the Pawnee City Attorney that he would cease to hold office on Monday, May 1, 2006, at the Call to Order of the Council Meeting because he failed to attend and successfully complete the “Institute for Municipal Officers” within one year of taking the oath of office. ¶3 Cheatham, the Defendant/Appellee, took his oath of office for the position formerly held by Riding In on September 18, 2006. Riding In filing suit contesting the title to office on December 7, 2006. The action was filed pursuant to 12 O.S. §1531, a special statute providing a process with which to contest title to public office.
Cheatham’s Motion to Dismiss was granted. ¶1 The Court of Appeals held that the district court lacked jurisdiction to entertain this matter because it was filed more than 30 days after Cheatham was inducted into office. ¶7 Although the Court did not specifically apply the training requirement to its ultimate decision, it was the failure to timely satisfy the training requirement that initially resulted in a consideration of vacancy of the office that culminated in Cheatham being “inducted” into the position. The Riding In case serves as a reminder that the training provisions are important and both attorneys and Clerks for the City or Town should be vigilant in encouraging the affected official satisfy these statutory training requirements .
Cities & Towns Publication Requirements
A number of Oklahoma State Statutes impose publication requirements for Cities and Towns. Municipal processes such as annexations, elections, assessment districts, and the annual budget, have publication requirements.
11 O.S. §1-102 defines the words “publish” and “publication.” as follows:
“Publish” or “Publication” means printing in a newspaper which:
Maintains an office in the municipality and is of general circulation in the municipality. If there is no such newspaper, then any newspaper which is of general circulation in the municipality; and
Meets the requirements of a legal newspaper as provided in Section 106 of Title 25 of the Oklahoma Statutes.
If there is no newspaper meeting the requirements as provided for in this paragraph, the term publish or publication, shall mean posting a copy of the item to be published in ten or more public places in the municipality. When notice is required to be published for a prescribed period of time, publishing the notice one (1) day each week during the prescribed period of publication is sufficient in accordance with Section 103 of Title 25 of the Oklahoma Statutes.
25 O.S. §106 defines a legal newspaper. It provides as follows:
No legal notice, advertisement, or publication of any kind required or provided for by the laws of this state to be published in a newspaper shall have force or effect unless published in a legal newspaper of the county. A legal newspaper of the county is any newspaper which, during a period of one hundred four (104) consecutive weeks immediately prior to the first publication of such notice, advertisement, or publication:
has maintained a paid general subscription circulation in the county; and
has been admitted to the United States mails as paid second-class mail matter; and
has been continuously and uninterruptedly published in the county. If there is no legal newspaper in a county, then all legal notices, advertisements, or publications of any kind required or provided for by the laws of this state shall be published in a legal newspaper in an adjoining county of this state, which newspaper has general circulation in the county or political subdivision in which such notice is required.
City and Town Attorneys are encouraged to coordinate with the City and Town Clerks to ensure compliance with publication requirements. It is also advisable for a city or town to confirm annually with the newspaper being utilized that they meet the statutory criteria.