Executive Sessions
OAMA Membership
Codification
Conflicts of Interest
Norman Case Update
Social Media Policy
Newspaper of General Circulation
Recreational Land Use Act
IMLA Tips
Child Abuse Reporting
Election Day and Political Activities
As Election Day approaches, now is a good time to review your client’s policies, procedures, handbooks, and ordinances regarding voting and political activities. 26 O.S. §7-101 addresses the requirements regarding the time to vote by employees. It provides as follows:
Every corporation, firm, association, or individual, hereinafter referred to as "employer", who has a registered voter employed or in-service shall grant the employee two (2) hours of time in which to vote, subject to the following provisions:
Such time to vote shall be allowed on the day of the election or on a day on which in-person absentee voting is allowed by law;
If such employee is at such distance from the voting place that more than two (2) hours are required in which to attend such elections, then the employee shall be allowed a sufficient time in which to cast a ballot;
No such employee shall be entitled to such time to vote unless the employee notifies orally or in writing an employer's representative of the employee's intention to be absent at least three (3) days preceding the day of the election or the day of in-person absentee voting. Such employer may select the days and hours which such employees are to be allowed to attend such elections, and may notify each of the employees which days and hours he or she has in which to vote. This section shall not apply to an employee whose workday begins three (3) hours or more subsequent to the time of opening of the polls or ends three (3) hours or more prior to the time of closing the polls. The employer may change the work hours to allow such three (3) hours before the beginning of work or after the work hours; and
Upon proof of voting, such employee shall not be subject to any loss of compensation or other penalty for such absence.
Any employer who fails to comply with this section shall be subject to a civil penalty of not less than Fifty Dollars ($50.00) nor more than One Hundred Dollars ($100.00).
Now would be a good time to remind City Managers, Town Administrators, and supervisors of these statutory requirements and also to encourage them to make arrangements to shift work schedules so that all employees have the opportunity to vote. In the current climate, it might also be a good idea to liberally apply this statute to your workforce.
As most of you are certainly aware, Title 11 addresses political activities by municipal employees. It provides as follows:
Municipal employees may attend and express their views at city council meetings, or any other public meetings of municipal entities.
Any municipal employee may actively participate in partisan and nonpartisan political activities. Provided, the political activity in which the employee participates shall be exercised only during off-duty hours and while not in uniform. Any federal statutes restricting the political activities of certain municipal employees shall supersede the provisions of this section as to such employees. Municipal corporations may establish employment requirements requiring municipal employees to refrain from filing as a candidate for public office while employed by said municipality.
Obviously, your City’s charter may have requirements that differ from these provisions. As Election Day approaches, you may want to educate your elected and appointed officials of these provisions and remind them about the importance of enforcing these provisions in an even-handed, non-partisan way.
Social Media Policy
Does your city or town have a presence on social media? If so, 74 O.S. §840-8.1 requires you to have a social media policy. Specifically, it requires all political subdivisions to adopt a social networking and social media policy that applies to the use of social media by its employees. The stated purpose appears to be to discourage abusive or offensive online behavior. See 74 O.S. §840-8.1(A). It applies to employees who use social media or social networking networks for work purposes. See 74 O.S. §840-8.1(B).
The statute discourages the sharing of content or comments by city or town employees containing:
Obscene sexual content or links to obscene sexual content;
Abusive behavior and bullying language or tone;
Conduct or encouragement of illegal activity; and
Disclosure of information that an agency and its employees are required to keep confidential by law, regulation, or internal policy. See 74 O.S. §840-8.1(C).
Importantly, Social media and social networking policies must be distributed to each affected employee by email. See 74 O.S. §840-8.1(D). Fortunately, cities and towns may not be held liable if a loss or claim results from any discretionary actions taken pursuant to the provisions of this statute. See 74 O.S. §840-8.1(E).
Every year, the Oklahoma Legislature attempts to pass bills that affect cities and towns. Sometimes it is difficult to keep up with all of those changes. This law became effective as of November 1, 2019. It is an important reminder to contact your clients, City or Town Administrators, or City or Town Human Resource personnel to see if they have a social media presence and if so, to ensure that there is a social media policy in place. Templates can be found on the websites of OMAG, the City of Oklahoma City, the City of Lawton, and the State of Oklahoma Office of Management and Enterprise Services.
Use of Public Funds for Elections
Over the years there have been a number of Oklahoma attorneys that have positively impacted the practice of municipal law. Alan Jackere, a long-time attorney for the City of Tulsa was one of those. He worked for the City of Tulsa for 32 years and concluded his distinguished career as City Attorney until his retirement in 2007. It is appropriate that we recognize his accomplishments following his death last week by highlighting a case that he handled, Quinn v. City of Tulsa, 1989 OK 112.
Tom Quinn filed an action against the City of Tulsa seeking to enjoin the issuance of bonds and from levying and collecting additional property taxes to pay for the bonds. This action was filed following a special election in which the voters approved the indebtedness. It was filed against the City, the Chamber of Commerce and the “Vote Yes for Tulsa Committee,” and alleged that the City had expended public money in an effort to promote passage of the tax and bond issues, had made misrepresentations to the public, and had engaged in improper procedures in handling the resolution, ordinance and ballot. He contended that the acts of the City resulted in an illegal tax.
The Trial Court found for the City and held that the form and content of the ballots were sufficient, that City officials did not act improperly, and that there was insufficient evidence of fraud or coercion on the part of elected officials or employees during the campaign. The Trial Court did find that City officials had acted improperly in allowing or authorizing the expenditure of public funds in support of the bond proposal but held that injunctive relief to restrain issuance and sale of the bonds would not redress those improper actions.
During the course of the litigation, Mr. Quinn provided a comprehensive list of ways that he believed the City improperly used public money to support the passage of the bond issue. He identified the following:
City money was used to pay for a survey of voter attitudes during the planning stages for the bond election,
City employees were asked, during working hours to perform functions in support of the campaign for passage of the bond issue,
The City Development Department expended public money and used public employees to compile a campaign strategy manual,
City, through proxies, paid for newspaper ads which were generally favorable to the bond issue,
The Mayor used his office stationery and employees to mail letters soliciting support for passage of the bond issue,
City employees were used to form a committee for the purpose of campaigning for passage of the bond issue, and that several City employees participated in this Committee's activities while on tax-supported work time,
The Mayor and City Commissioners were vocal in their support of the bond issue and neglected other City business to work for its passage,
City employees were called to meetings during working hours where they were urged to vote for the bond issue,
Memoranda and other communications supporting the issue were prepared and distributed during working hours by City employees at City expense, and,
City allowed campaign signs in support of the issue to be placed on public property
The Supreme Court upheld the decision of the Trial Court, noting that “when a failure to meet statutory formalities is invoked after the balloting takes place, the results of an election will not be invalidated absent proof of fraud or corruption so pervasive as to taint the entire process.” The Court further noted that while Mr. Quinn showed substantial effort by the City to sway the voters, he was unable to demonstrate that the efforts of the City were successful or that the election would have been different without those efforts.
The findings of the Supreme Court, notwithstanding, this case serves as an excellent reminder to be mindful about the expenditure of public funds, including the dedication of municipal time and resources, to advance an election. When I advise my clients about the role they can play in advancing a general obligation initiative, I remind them of the importance of not using public funds to advocate for passage of the issue. I also provide them with the list of activities from the Quinn case and emphasize that an election can be overturned if they do not act within the parameters set by State Statute. That is not to say that elected officials and employees cannot provide information to voters and that some public funds cannot be used to do so. A good example might be to prepare inserts for utility bills informing voters of the date of the election and the matters to be decided. Particular care should be given, however, to elections involving initiative petition and referendum, as there are criminal penalties for violation. See 26 O.S. §16-119
Buying Buses on Credit: Avoid Financing via Court Judgement
In August of 1928, Carter County School District No. 72 (“School District”) purchased eight (8) school buses for $17,025.00, less a credit of $900.00 for old buses. The School District had requested funding for the buses during that fiscal year, but no appropriation was made for the purchase. When the School District failed to render payment, suit was filed by the bus manufacturer, W.S. Spears Motor Company. Although the School District filed a General Answer and Denial in the case, judgment was rendered to bus manufacturer a short time later. The principal and interest of the judgment was listed by the School District on its estimate of needs for sinking fund purposes the following fiscal year. The estimate of needs provides the basis for ad valorem tax levies for sinking funds to cover bonded indebtedness and judgments under Title 62 O.S §361 et seq. (Judgments Against Municipalities Act). Carter Oil Company, an ad valorem taxpayer, filed a protest before the Court of Tax Review seeking elimination of the school bus payment judgment from the levy. The protest was sustained and correction of the appropriation was made. The County Excise Board appealed this decision.
In this case, Protest of Carter Oil Co., 1931 OK 15, the Oklahoma Supreme Court upheld the decision of the Court of Tax Review and found that the underlying judgment was invalid. The Court further found that purchase of the buses was in direct violation of the debt-limiting provisions of the Constitution due to the School District’s use of a judgment to pay for the purchase. This was a creative, but unconstitutional way to buy buses on credit.
It its final paragraph, the Supreme Court discussed the motives of those involved. It noted as follows:
There is nothing in this record to indicate that the school district officers, the motor company, or the trial court acted from corrupt motives. Their efforts were to the end that the school district might have adequate transportation facilities for the use of the school children. The school district officers thought that an appropriation would be made out of which the buses might be purchased and they made their estimate accordingly. When they learned that the appropriation would not be made and could not be made, they were without facilities for the transportation of the school children and they did what they thought was for the best interests of the school district without considering the limitations imposed by the Constitution or the interest of the taxpayers of the school district. The fact that they acted in good faith is of no avail and cannot be considered by this court in determining whether or not they violated the constitutional limitations imposed upon them.
Especially in challenging economic times, elected officials are forced to make difficult decisions and establish spending priorities for their communities. This case is an excellent reminder of the importance of the annual budgetary process. It is also a reminder to avoid the temptation to creative financing of purchases that circumvent the process set forth in debt-limiting provisions of the Oklahoma Constitution and the provisions of the Judgment Against Municipalities Act.
References Regarding Former Employees
The Oklahoma Court of Civil Appeals recently decided the case of Brad D. Asher, et al. vs. Parsons Electric, L.L.C., 2020 OK CIV APP 13. This case involved interpretation of 40 O.S. § 172. Asher centered around an e-mail sent from a representative of one joint venture to another. It provided a list of employees who had been terminated from employment on the project, as well as the reasons for termination. Although the Court ultimately concluded that the statute did not apply because the communication was between joint ventures, the teachings of the case are applicable and relevant, particularly in the instant economic environment.
The statute provides as follows:
No firm, corporation or individual shall blacklist or require a letter of relinquishment, or publish, or cause to be published, or blacklisted, any employee, mechanic or laborer, discharged from or voluntarily leaving the service of such company, corporation or individual, with intent and the purpose of preventing such employee, mechanic or laborer, from engaging in or securing similar or other employment from any other corporation, company or individual.
Section 173 of Title 40 provides a penalty of between $100.00 and $500.00. More importantly, however, it provides for a specific cause of action against the former employer. The Court in Asher noted that it appears that the Oklahoma Legislature “intended to prohibit the intentional interference of a former employer with an employee’s attempt to seek work elsewhere.”
Some believe that there is a correlation between a poor economy and the number of lawsuits filed. If former employees are desperate and have nothing to lose, they may be more likely to pursue litigation. Although representatives of employer cities and towns should never speak disparagingly about former employees, the potential for litigation should serve as a powerful motivator to provide only basic information about former employees. OMAG generally recommends that its member cities and towns provide only the name, position, and dates of service of former employees. The potential for litigation should also serve as a reminder to be thoughtful in e-mail and text communications about current and former employees, particularly to those outside of the organization.
Are Public Comments Required at Public Meetings?
Government of the people, by the people, and for the people. Familiar terms from American History lessons. But does this phrase mean you are required to allow citizens attending municipal public meetings to speak? IT DEPENDS!
There are some types of business transacted by cities and towns that require a public hearing. For example, certain property zoning actions and applications require a public hearing.i It is also not unusual for federal grants available to cities and towns, such as the Community Development Block Grant (CDBG), or Homeland Security grants to require public hearings prior to award. The adoption of an annual budget also requires a public hearing.ii The citizens attending these types of meetings are entitled to speak.
On the other hand, there is no requirement in the Oklahoma Open Meeting Act (OMA) that citizens be allowed to address the City Council or Town Board on other matters of municipal business at a public meeting.iii
Some cities and towns, desiring to make local government more accessible, have instituted a practice of having an “open mic” period where attendees of the meeting can address elected officials directly on any topic not specifically listed on the Agenda.
A public body is not required to allow public comments at its meetings, either under the Act or under the First Amendment.iv In fact, many City Attorneys routinely advise against having a public comments agenda item primarily to avoid the risk of an Open Meeting Act violation.
The purpose of the OMA is to encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems.v All meetings of public bodies shall be preceded by advance public notice specifying the subject matter or matters to be considered at such meeting.vi
The OMA requires that governing bodies tell the public not only what will be discussed but also what will be acted on. This requirement is defeated by having an “open mic” without any indication of the topic and with no notice to the rest of the public of the topic.
For those cities and towns that allow for an “open mic” forum there is a risk that Councilmembers or Board Trustees may feel compelled to respond to citizen comments, and thereby discuss and/or act on matters not on the Agenda. Any discussion or action taken by a Council or Board that was not posted 24 hours in advance of a public meeting is contrary to the OMA.
Examples of violations of the OMA with regard to a Public Hearing and a Public Comment are as follows:
Public Hearing: The City has scheduled a public hearing in two weeks for a zoning change for a developer. The developer does not want to be at the public hearing when residents show up and object. Instead, the developer comes two weeks early and under public comments wants to discuss his proposal. Citizens affected by the zoning change have a right to attend a public hearing and defend their position. The proper time and place for the developer’s comments is the public hearing. If the City Council or Town Board hears and/or acts on the zoning change in the public comments section of the meeting, this would be a violation of the OMA.
Public Comments: A citizen complains during public comments about the condition of a neighbor’s property and the Mayor directs the City Manager to look into the issue and deal with it. The person most affected by the Mayor’s directive had no notice that the topic would be discussed publicly. By discussing and taking action without notice to the public, the Mayor may have violated the OMA.
This does not mean that citizens do not get an opportunity to address their elected officials – it just means that cities and towns are not required by law to allow public comments. At the State and Federal level, there is no “open-mic.” If a citizen has a concern at the State and Federal level, they call their legislator and express support, concerns and opinions. This should be the same at the local level.
Councilmembers and Board Trustees should keep in mind that OMA violations could result in criminal liability if it is found that the OMA was “willfully violated.”vii
For cities and towns that continue to have “open mic” on the Agenda, the Board or Council should be diligent in making sure no responses from elected officials are allowed and no action is taken by elected officials in response to issues brought up during the “open mic.”
DISCLAIMER: OMAG attorneys have sought to keep updating this webpage with the most up-to-date information possible. OMAG members seeking legal advice should be aware that there may not be clear-cut answers on some of the issues. OMAG offers this guidance to help your municipality make informed decisions about policies and procedures, directly or indirectly until some of the issues can be decided by the Legislature or the Courts. If you have questions or concerns about the information contained in these articles, please email one of the attorneys in the OMAG Legal Department (see https://www.omag.org/legal-services for contact information).
i 11 O.S. §§43-104, 106
ii 11 O.S. §17-208
iii 2002 OK AG 44 and 1998 OK AG 45 and Minn. Bd. for Cmty. Coll. v. Knight, 465 U.S. 271, 284 (1984), (Policymaking organs in our system of government have never operated under a constitutional constraint requiring them to afford every interested member of the public an opportunity to present testimony before any policy is adopted.)
iv 2002 OK AG 44 v 25 O.S §302
vi 2020 OK AG 44 and “The Act is designed to ‘encourage and facilitate an informed citizenry's understanding of the governmental processes and governmental problems.’ 25 O.S.2001 §302. Because the Act was enacted for the public's benefit, it is to be construed liberally in favor of the public. I.A.F.F. Local 2479 v. Thorpe, 1981 OK 95, 632 P.2d 408. The Act serves to inform the citizenry of the governmental problems and processes by informing them of the business the government will be conducting. Advance notice to the public, via agendas, must 'be worded in plain language, directly stating the purpose of the meeting ... [and] the language used should be simple, direct and comprehensible to a person of ordinary education and intelligence.’ Andrews v. Independent School District No. 29 of Cleveland County, 1987 OK 40, 737 P.2d 929. Wilson v. City of Tecumseh, 2008 OK CIV APP 84, ¶10
vii See Okmulgee County Rural Water Dist. No. 2 v. Beggs Public Works Authority, 2009 OK CIV APP 51, ¶15 That said, "[a]ny action taken in willful violation of [OMA] shall be invalid." 25 O.S. §313. For purposes of §313, "[w]ilfullness does not require a showing of bad faith, malice, or wantonness, but rather, encompasses conscious, purposeful violations of the law or blatant or deliberate disregard of the law by those who know, or should know the requirements of the Act." Rogers v. Excise Bd. of Greer County, 1984 OK 95, ¶14, 701 P.2d 754, 761; In the Matter of Order Declaring Annexation Dated June 28, 1978, 1981 OK CIV APP 57, ¶29, 637 P.2d 1270, 1275. (Emphasis added.) Indeed, "the term 'willful' . . . include[s] any act or omission which has the effect of actually deceiving or misleading the public regarding the scope of matters to be taken up at the meeting[,] [and] . . . includes agency action which exceeds the scope of action defined by the notice." Haworth Bd. of Ed. of Independent School Dist. No. I-6, McCurtain County v. Havens, 1981 OK CIV APP 56, ¶10, 637 P.2d 902, 904. So, when a public body takes action without proper OMA notice, the action is invalid. In the Matter of Annexation, 1981 OK CIV APP 57, ¶¶30, 32, 637 P.2d at 1275; Haworth Bd. of Ed., 1981 OK CIV APP 56, ¶14, 637 P.2d at 904.)
Non-Collusion Affidavit
NON-COLLUSION AFFIDAVIT
Does your municipality have contracts with corporations and other entities that exceed $25,000.00 per year? Does your Finance Director or Treasurer require the execution of an affidavit before submitting payment? If not, you should familiarize them with the provisions of 62 O.S. § 310.9, which provides as follows:
A. Except as provided in subsection B of this section, on every contract entered into by any county, school district, technology center school district or political subdivision of the state for an architect, contractor, engineer or supplier of construction materials of Twenty-five Thousand Dollars ($25,000.00) or more, shall be the following signed statement:
STATE OF OKLAHOMA )
) ss.
COUNTY OF __________)
The undersigned (architect, contractor, supplier or engineer), of lawful age, being first duly sworn, on oath says that this contract is true and correct. Affiant further states that the (work, services or materials) will be (completed or supplied) in accordance with the plans, specifications, orders or requests furnished the affiant. Affiant further states that (s)he has made no payment directly or indirectly to any elected official, officer or employee of the State of Oklahoma, any county or local subdivision of the state, of money or any other thing of value to obtain or procure the contract or purchase order.
__________________________________
(Contractor, architect, supplier or engineer)
Attested to before me this ____ day of _______, 20____.
B. Any county, municipality or school district executing a contract with an architect, contractor, supplier or engineer for construction, supplier or engineer for construction work, services or materials which are needed on a continual basis from such architect, contractor, supplier or engineer under the terms of such contract, or executing more than one contract during the fiscal year with such architect, contractor, supplier or engineer, may require that the architect, contractor, supplier or engineer complete a signed affidavit as provided for in subsection A of this section which shall apply to all work, services or materials completed or supplied under the terms of the contract or contracts.
The provisions of this statute seem to leave provision of the affidavit up to the municipality if the work, services or materials are on a contractual basis or where more than one contract is executed during the fiscal year. Reading the two subsections together lends credibility to the argument that if the contractor receives over $25,000.00, regardless of whether the services are provided on an ongoing basis or the result of multiple contracts, the affidavit must still be provided.
Applying best practices, it is recommended that contractors, such as attorneys, submit an affidavit with every invoice. Provision will ensure that payment to contractors does not run afoul of the statute. The Charter and local ordinances should also be reviewed to ensure compliance with the statute.
Oklahoma Recreational Land Use Act
OKLAHOMA RECREATIONAL LAND USE ACT
An often overlooked statute that provides liability protection for land dedicated for public outdoor recreational purposes is the Recreational Land Use Act found at Title 76 Okla. Stat. §10.1. The purpose of the Recreational Land Use Act is to encourage landowners to make land available to the public for outdoor recreational purposes by limiting their liability to persons entering upon and using their lands and to third persons who may be damaged by the acts or omissions of persons going upon these lands. 76 O.S. §10.1(A). The Act imposes no duty of care to any person who enters or uses land provided for outdoor recreational purposes. 76 O.S. §10.1(B). The Act goes a step further and provides that those who make land available for outdoor recreational purposes are not presumed to make any assurance that the land is safe and will assume no liability for any injury to persons or property who enter onto it. 76 O.S. §10.1(C). There are exceptions, however. If a charge is made for entering or using any part of the land or if any commercial or for-profit activity takes place on the land, then the Act does not apply. 76 O.S. §10.1(D).
Application of the Recreational Land Use Act was considered by Oklahoma courts in 2015. On November 18, 2015, the Oklahoma Court of Civil Appeals decided the case of Sanders, et al v. River Parks Authority, 2016 OK CIV APP 79. This case involved an action brought by the personal representatives of a preacher that was tragically killed on a Tulsa River Parks trail when he was struck on a by a young boy riding a bicycle. The Plaintiffs alleged that the River Parks was responsible for the death due to the negligent design of the trail where the accident occurred, inadequate warning signs, and insufficient supervision at the River Parks trail system. The River Parks Authority asserted no liability under the Recreational Land Use Act. The Plaintiffs contended that the Recreational Land Use Act did not apply because the River Parks Authority imposed various charges, including commercial and for-profit activities.
The Plaintiffs, in this case, identified several charges and commercial activities they believed removed the River Parks from the protection of the Recreational Land Use Act. Specifically cited were licensure of public restaurants along the trails, commercial filming and still photography, rental of the River West Festival Park, and fees charged to event organizers who used the trails for runs, walks, and bike rides.
The Court of Appeals held that the commercial activity identified by the Plaintiffs was unrelated to the land use by those persons involved in the accident. The Court further found that because there was no charge for the use of the trails and their use during events was not exclusive, the River Parks Authority could avail itself of the use of the Recreational Land Use Act’s protections.
For cities, towns, and public trusts in Oklahoma that make land available for outdoor recreational activity, the Recreational Land Use Act should be kept in mind when considering potential liability claims asserted against them by users of the outdoor recreational land.
Newspaper General Circulation
The first of the year is a terrific time to ensure that your municipal publications are compliant with state statute. Many municipal processes require notification to the public, typically handled through publication in a newspaper of general circulation. 25 O.S. §106 addresses legal publication by newspaper and provides in pertinent part 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.
This provision of state statute was discussed at length in the case of Town of Goldsby v. City of Purcell, 2010 OK CIV APP 14. Town of Goldsby involved a declaratory judgment action filed by Goldsby alleging that the annexation sought by Purcell was void due to lack of proper and timely publication of notice. The trial court held that Purcell’s publication in the Oklahoman was not proper because it was not published within McClain County as required by the statute. Newspapers from adjoining counties may not be used unless there is no legal newspaper in the county. Citing Ruble v. Redden, 1973 OK 157, the Court noted that:
The legislature has an interest in seeing that the publication of legal notices is accomplished in a manner most likely to reach the persons affected by or interested in the notice.
Failure to comply with publication of notice for various municipal processes, as evidenced above, has the effect of voiding any Council or Board action. In preparation for the New Year, it may be a good time to review the publication practices of your City or Town Clerk, and also ensure that the publication utilized meets the statutory criteria set forth above.