If after becoming non resident would not her vote on matters be of
questionable validity?

On June 22, 2022, at 5:16 PM, Kim@spadylaw.com wrote:

This is what I was thinking, Ray.  Seems like it would have to be placed
on the agenda and the governing body would have to make a determination
that the mayor is no longer a resident of the municipality and therefore no
longer holds office.

Absent that determination, the mayor remains in office.

It’s not a certain course of action – any councilmember could ask that the
matter be placed on the agenda and the mayor would then surely be out. But
if everyone is happy, maybe that won’t happen.

Kim Spady

From: rayvincent@coxinet.net rayvincent@coxinet.net
Sent: Wednesday, June 22, 2022 4:29 PM
To: Lowell Peterson lpeterson@live.com; Phillip Morton <
mortonlawoffice@gmail.com>; oama@lists.imla.org
Subject: [Oama] Re: Residency Requirement for Mayor

But what about this.

11 OS 8-108

Whenever a member of the municipal governing body is absent from more than
one-half of all meetings of the governing body, regular and special, held
within any period of four (4) consecutive months, he shall thereupon cease
to hold office.

Sounds like immediately, but

1996 OK AG 98

*. An elected member of a municipal governing body who is absent for more
than half of all meetings, regular and special, of that body held within
any period of four consecutive months, vacates his or her office. 2. Under
the provisions of *51 O.S.1991, § 8,

• it is the appointing authority who determines whether the facts giving
  rise to a vacancy in office have occurred. When there is a dispute over the
  facts giving rise to the vacancy, the appointing authority must afford the
  office holder some type of minimal due process. 3. Under the provisions of *11
  O.S.1991, § 8-109,
• when a vacancy occurs in an elected municipal office-save that of
  mayor-it is the municipal governing body, by a majority vote of the
  remaining members, that fills the vacancy. 4. Thus, whether under the
  mandate of 11 O.S.1991, § 8-108, an elected municipal officer has
  vacated his or her office by virtue of being absent from more than half of
  all meetings, regular and special, of the municipal governing body held
  within any period of four consecutive months, is determined by the
  remaining members of that body.*

Minimum due process?

Could this be applicable to your situation?

Ray

From: Lowell Peterson

Sent: Wednesday, June 22, 2022 4:13 PM

To: Phillip Morton ; oama@lists.imla.org

Subject: [Oama] Re: Residency Requirement for Mayor

*Although § 9-103 of Title 11 allows for governing body members in an
aldermanic city to relocate from one ward to another during the course of
their term without losing their seat, *

*Title 11. Cities and Towns *

• Chapter 1 - Oklahoma Municipal Code    Article IX - Aldermanic Form of
  Government      Section 9-103 - Qualifications of Governing Body Members *The
  governing body members shall be residents and registered voters of the
  city, and the councilmembers from wards shall be actual residents of their
  respective wards at the time of their respective candidacies and elections. Removal
  of a councilmember from a ward to another ward within the municipality
  after his or her election, or a change in ward boundaries, shall not
  disqualify the councilmember from completing the term for which he or she
  was elected.

§ 8-101, in reference to all municipal officers without distinction among
forms of government, requires automatic termination of office upon
relocation outside city limits.

*Title 11. Cities and Towns *

• Chapter 1 - Oklahoma Municipal Code    Article VIII - Officers -
  General Provisions        Section 8-101 - Qualifications for Elected Office
  *A municipal elected official shall be a resident and a registered voter
  of the municipality in which he serves, and all councilmembers or trustees
  from wards shall be actual residents of their respective wards. If an
  elected official ceases to be a resident of the municipality, he shall
  thereupon cease to be an elected official of that municipality.

I think your mayor is no longer mayor immediately upon moving out of
town.

Lowell Peterson

22309 E. 67th Street S.

Broken Arrow, OK 74014

lpeterson@live.com lpeterson@live.com

Cell (918) 805-4090

From: Phillip Morton mortonlawoffice@gmail.com
Sent: Wednesday, June 22, 2022 3:47 PM
To: oama@lists.imla.org
Subject: [Oama] Residency Requirement for Mayor

Mayor has less than a year of her term left, and does not plan on running
again. Aldermanic form of government. The Mayor is planning to move just
outside of city limits prior to the expiration of her term. General
consensus is that the citizens and council would like the mayor to finish
out the term even if after the move. So my question is, practically how
would this work, assuming the mayor does move outside of the municipal
limits. Does the council have to make a determination that the mayor no
longer meets the statutory qualifications and remove her? Or is her
position vacated automatically?

Phillip N. Morton, J.D.

P.O. Box 1886

Ada, OK 74820

Phone: 580-759-0049

Fax: 580-759-2177

Email: MortonLawOffice@gmail.com

CONFIDENTIAL AND PRIVILEGED COMMUNICATION: This electronic mail
transmission, as well as any attachments, may contain confidential
information that is legally privileged. If you are not the intended
recipient, any disclosure, copying, distribution, or use of any of the
information contained in or attached to this message is STRICTLY PROHIBITED
by law. If you have received this message in error, please immediately
notify us by replying to this email or by calling 580-759-0049.

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We have in Sand Springs this ordinance to deal with elected official who
may not meet the qualifications:

1.16.040 Eligibility to hold municipal office.

State law regulates both the eligibility for candidacy and the eligibility
to hold office.

Although the City Clerk must determine eligibility for candidacy, the City
is responsible for

ensuring compliance with state law as it concerns eligibility to hold
office. The Sand

Springs Charter, at Section 2-1, provides as follows concerning
eligibility to hold office:

Only persons who are qualified electors of the City at least twenty-five
years of age shall

be qualified for the office of councilman at large. Only persons who are
qualified electors

of their respective wards at least twenty-five years of age shall be
qualified for the offices

of councilmen from the wards.

In order to ensure compliance with the above provision, the following
procedures

are adopted by the City of Sand Springs to apply to ALL elected officials
of the City of

Sand Springs:

In those instances in which the qualification to hold office is questioned
by an

elected official, or a resident of Sand Springs, the City Clerk shall be
authorized to

investigate the lack of qualifications, and shall be authorized to request
from the elected

official any information necessary for a full and complete investigation.
Upon conclusion

of the investigation, if the information provided by the elected official
does not satisfy the

City Clerk and City Attorney that the requirements of the City’s Charter
and of state law

are met, the City Attorney is authorized and directed to proceed as
follows:

1. Immediately request such additional information as necessary to resolve

the eligibility issue;

2. Bring an action in Tulsa County District Court requesting the Court to

resolve the eligibility to hold office issue;

The City Council by approval of this ordinance directs that the City
Clerk, and all other

officials of the City, are precluded from administering the oath of office
to any individual in

which the eligibility to hold office issue has not been fully resolved, as
set forth above.

This was intended to take the politics out of determining residency (it is
very hard for the elected officials to resolve that issue if someone has
just won an election!)  Also, was intended to clearly require the alleged
office holder to cooperate to determine eligibility (some don’t think they
are required to).

David L. Weatherford

Attorney At Law

1141 East 37th Street

Tulsa, OK  74105

(918) 743-8355

(918) 743-7478 (fax)

From: Matt Love matt.love@gmail.com
Sent: Thursday, June 23, 2022 12:21 PM
To: david davis ddavislaw@live.com
Cc: Kim@spadylaw.com; oama@lists.imla.org
Subject: [Oama] Re: Residency Requirement for Mayor

I'm not worried about the votes being questioned (or at least that a
challenge would go anywhere). The de facto Officer line of cases treats
the votes/actions of a public Officer who has a defect in their title to
continue to hold the Office as though they are the actions of a de jure (legal)
Officer. Collateral attacks are not permissible.

I would also say that I concur that the vacancy would not be self
executing and the body with authority to fill the vacancy (the Council) is
the body who would need to declare the vacancy as existing. Since it's an
elected office, the case law also suggests that due process has to be
provided as part of declaring the vacancy. Easiest course is always for the
person to simply resign rather than having to go through the process. But I
know it'll be hard for anyone on the OAMA listserve to believe that
occasionally elected officials don't take the easiest route in situations
like this.

On Thu, Jun 23, 2022 at 9:24 AM david davis ddavislaw@live.com wrote:

If after becoming non resident would not her vote on matters be of
questionable validity?

On June 22, 2022, at 5:16 PM, Kim@spadylaw.com wrote:

This is what I was thinking, Ray.  Seems like it would have to be placed
on the agenda and the governing body would have to make a determination
that the mayor is no longer a resident of the municipality and therefore no
longer holds office.

Absent that determination, the mayor remains in office.

It’s not a certain course of action – any councilmember could ask that the
matter be placed on the agenda and the mayor would then surely be out. But
if everyone is happy, maybe that won’t happen.

Kim Spady

From: rayvincent@coxinet.net rayvincent@coxinet.net
Sent: Wednesday, June 22, 2022 4:29 PM
To: Lowell Peterson lpeterson@live.com; Phillip Morton <
mortonlawoffice@gmail.com>; oama@lists.imla.org
Subject: [Oama] Re: Residency Requirement for Mayor

But what about this.

11 OS 8-108

Whenever a member of the municipal governing body is absent from more than
one-half of all meetings of the governing body, regular and special, held
within any period of four (4) consecutive months, he shall thereupon cease
to hold office.

Sounds like immediately, but

1996 OK AG 98

*. An elected member of a municipal governing body who is absent for more
than half of all meetings, regular and special, of that body held within
any period of four consecutive months, vacates his or her office.2. Under
the provisions of *51 O.S.1991, § 8,

• it is the appointing authority who determines whether the facts giving
  rise to a vacancy in office have occurred. When there is a dispute over the
  facts giving rise to the vacancy, the appointing authority must afford the
  office holder some type of minimal due process.3. Under the provisions of *11
  O.S.1991, § 8-109,
• when a vacancy occurs in an elected municipal office-save that of
  mayor-it is the municipal governing body, by a majority vote of the
  remaining members, that fills the vacancy.4. Thus, whether under the
  mandate of 11 O.S.1991, § 8-108, an elected municipal officer has
  vacated his or her office by virtue of being absent from more than half of
  all meetings, regular and special, of the municipal governing body held
  within any period of four consecutive months, is determined by the
  remaining members of that body.*

Minimum due process?

Could this be applicable to your situation?

Ray

From: Lowell Peterson

Sent: Wednesday, June 22, 2022 4:13 PM

To: Phillip Morton ; oama@lists.imla.org

Subject: [Oama] Re: Residency Requirement for Mayor

*Although § 9-103 of Title 11 allows for governing body members in an
aldermanic city to relocate from one ward to another during the course of
their term without losing their seat, *

Title 11. Cities and Towns

• Chapter 1 - Oklahoma Municipal Code  Article IX - Aldermanic Form of
  Government    Section 9-103 - Qualifications of Governing Body Members*The
  governing body members shall be residents and registered voters of the
  city, and the councilmembers from wards shall be actual residents of their
  respective wards at the time of their respective candidacies and elections Removal
  of a councilmember from a ward to another ward within the municipality
  after his or her election, or a change in ward boundaries, shall not
  disqualify the councilmember from completing the term for which he or she
  was elected.

§ 8-101, in reference to all municipal officers without distinction among
forms of government, requires automatic termination of office upon
relocation outside city limits.

Title 11. Cities and Towns

• Chapter 1 - Oklahoma Municipal Code    Article VIII - Officers -
  General Provisions      Section 8-101 - Qualifications for Elected Office*A
  municipal elected official shall be a resident and a registered voter of
  the municipality in which he serves, and all councilmembers or trustees
  from wards shall be actual residents of their respective wards. If an
  elected official ceases to be a resident of the municipality, he shall
  thereupon cease to be an elected official of that municipality.

I think your mayor is no longer mayor immediately upon moving out of
town.

Lowell Peterson

22309 E. 67th Street S.

Broken Arrow, OK 74014

lpeterson@live.com lpeterson@live.com

Cell (918) 805-4090

From: Phillip Morton mortonlawoffice@gmail.com
Sent: Wednesday, June 22, 2022 3:47 PM
To: oama@lists.imla.org
Subject: [Oama] Residency Requirement for Mayor

Mayor has less than a year of her term left, and does not plan on running
again. Aldermanic form of government. The Mayor is planning to move just
outside of city limits prior to the expiration of her term. General
consensus is that the citizens and council would like the mayor to finish
out the term even if after the move. So my question is, practically how
would this work, assuming the mayor does move outside of the municipal
limits. Does the council have to make a determination that the mayor no
longer meets the statutory qualifications and remove her? Or is her
position vacated automatically?

Phillip N. Morton, J.D.

P.O. Box 1886

Ada, OK 74820

Phone: 580-759-0049

Fax: 580-759-2177

Email: MortonLawOffice@gmail.com

CONFIDENTIAL AND PRIVILEGED COMMUNICATION: This electronic mail
transmission, as well as any attachments, may contain confidential
information that is legally privileged. If you are not the intended
recipient, any disclosure, copying, distribution, or use of any of the
information contained in or attached to this message is STRICTLY PROHIBITED
by law. If you have received this message in error, please immediately
notify us by replying to this email or by calling 580-759-0049.

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