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.

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:

1. has maintained a paid general subscription circulation in the county; and

2. has been admitted to the United States mails as paid second-class mail matter; and

3.  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.