conflict of interest
Fellow attorneys:
One of my towns has a vacancy in the Planning and Zoning Board; those positions receive no salary. I have advised that they cannot appoint a person to sit on that Board, and allow him to continue working from time to time for the Town. (He has a drone service, and occasionally we retain him to prepare an aerial photo for us.)Of course, he could choose not to work for us while he sits on the Board, but he wants to do both. Am I correct?
Thanking you in advance for your comments.
Kay Wall
I agree. see statute below:
Title 11. Cities and Towns
[https://www.oscn.net/Images/Applications/search/WDFolderOpen.gif]https://www.oscn.net/applications/OCISWeb/index.asp?level=1&ftdb=STOKSTOklahoma Statutes Citationized
[https://www.oscn.net/Images/Applications/search/WDFolderOpen.gif] https://www.oscn.net/applications/OCISWeb/index.asp?level=1&ftdb=STOKST11 Title 11. Cities and Towns
[https://www.oscn.net/Images/Applications/search/WDFolderOpen.gif] https://www.oscn.net/applications/OCISWeb/index.asp?level=1&ftdb=STOKST11#Chapter1-OklahomaMunicipalCode Chapter 1 - Oklahoma Municipal Code
[https://www.oscn.net/Images/Applications/search/WDFolderOpen.gif] https://www.oscn.net/applications/OCISWeb/index.asp?level=1&ftdb=STOKST11#ArticleVIII-Officers-GeneralProvisions Article Article VIII - Officers - General Provisions
[https://www.oscn.net/Images/Applications/search/WDDocument.gif] Section 8-113 - Prohibited Conduct
Cite as: O.S. §, __ __
A. Except as otherwise provided by this section, no municipal officer or employee, or any business in which the officer, employee, or spouse of the officer or employee has a proprietary interest, shall engage in:
-
Selling, buying, or leasing property, real or personal, to or from the municipality;
-
Contracting with the municipality; or
-
Buying or bartering for or otherwise engaging in any manner in the acquisition of any bonds, warrants, or other evidence of indebtedness of the municipality.
CONFIDENTIALITY NOTE: This transmission is protected by the Electronic Communications Privacy Act, 18 U.S.C. Sections 2510-2521 and intended to be delivered only to the named addressee(s) This e-mail message is intended only for the personal use of the recipient(s) named above. This message is or may be an attorney-client communication and as such privileged and confidential. If you are not an intended recipient, you may not review, copy or distribute this message. If you have received this communication in error, please notify us immediately by e-mail and delete the original message.
s/ David A. Davis
LAW OFFICE OF DAVID A. DAVIS
4312 N. Classen Blvd.
OKLAHOMA CITY, OK 73118
405 840-6353
405 557-0777 (FAX)
ddavislaw@live.commailto:ddavislaw@live.com
From: Kay Robbins Wall lkrw@sbcglobal.net
Sent: Wednesday, October 20, 2021 11:33 AM
To: OAMA Luistserv oama@lists.imla.org
Subject: [Oama] conflict of interest
Fellow attorneys:
One of my towns has a vacancy in the Planning and Zoning Board; those positions receive no salary. I have advised that they cannot appoint a person to sit on that Board, and allow him to continue working from time to time for the Town. (He has a drone service, and occasionally we retain him to prepare an aerial photo for us.)
Of course, he could choose not to work for us while he sits on the Board, but he wants to do both. Am I correct?
Thanking you in advance for your comments.
Kay Wall
Are you certain a member of the planning & zoning board is a municipal
officer or employee?
Its been a while since Ive looked at the AG opinions that discuss who is a
municipal officer, but it seems like members of the planning/zoning board
may not be officers.
Kim Spady
From: david davis ddavislaw@live.com
Sent: Wednesday, October 20, 2021 11:42 AM
To: Kay Robbins Wall lkrw@sbcglobal.net; OAMA Luistserv
oama@lists.imla.org
Subject: [Oama] Re: conflict of interest
I agree. see statute below:
Title 11. Cities and Towns
https://www.oscn.net/applications/OCISWeb/index.asp?level=1&ftdb=STOKST
Oklahoma Statutes Citationized
https://www.oscn.net/applications/OCISWeb/index.asp?level=1&ftdb=STOKST11
Title 11. Cities and Towns
<https://www.oscn.net/applications/OCISWeb/index.asp?level=1&ftdb=STOKST11#C
hapter1-OklahomaMunicipalCode> Chapter 1 - Oklahoma Municipal Code
<https://www.oscn.net/applications/OCISWeb/index.asp?level=1&ftdb=STOKST11#A
rticleVIII-Officers-GeneralProvisions> Article Article VIII - Officers -
General Provisions
https://www.oscn.net/Images/Applications/search/WDDocument.gif
Section 8-113 - Prohibited Conduct
Cite as: O.S. §, __ __
A. Except as otherwise provided by this section, no municipal officer or
employee, or any business in which the officer, employee, or spouse of the
officer or employee has a proprietary interest, shall engage in:
-
Selling, buying, or leasing property, real or personal, to or from the
municipality; -
Contracting with the municipality; or
-
Buying or bartering for or otherwise engaging in any manner in the
acquisition of any bonds, warrants, or other evidence of indebtedness of the
municipality.
CONFIDENTIALITY NOTE: This transmission is protected by the Electronic
Communications Privacy Act, 18 U.S.C. Sections 2510-2521 and intended to be
delivered only to the named addressee(s) This e-mail message is intended
only for the personal use of the recipient(s) named above. This message is
or may be an attorney-client communication and as such privileged and
confidential. If you are not an intended recipient, you may not review, copy
or distribute this message. If you have received this communication in
error, please notify us immediately by e-mail and delete the original
message.
s/ David A. Davis
LAW OFFICE OF DAVID A. DAVIS
4312 N. Classen Blvd.
OKLAHOMA CITY, OK 73118
405 840-6353
405 557-0777 (FAX)
ddavislaw@live.com mailto:ddavislaw@live.com
From: Kay Robbins Wall <lkrw@sbcglobal.net mailto:lkrw@sbcglobal.net >
Sent: Wednesday, October 20, 2021 11:33 AM
To: OAMA Luistserv <oama@lists.imla.org mailto:oama@lists.imla.org >
Subject: [Oama] conflict of interest
Fellow attorneys:
One of my towns has a vacancy in the Planning and Zoning Board; those
positions receive no salary. I have advised that they cannot appoint a
person to sit on that Board, and allow him to continue working from time to
time for the Town. (He has a drone service, and occasionally we retain him
to prepare an aerial photo for us.)
Of course, he could choose not to work for us while he sits on the Board,
but he wants to do both. Am I correct?
Thanking you in advance for your comments.
Kay Wall
Planning commissioner is public officer per attorney general opinion below
Question Submitted by: The Honorable Bill Branch, Oklahoma State Senate
1983 OK AG 249
Decided: 09/30/1983
Oklahoma Attorney General
Cite as: 1983 OK AG 249, __ __
¶0 The Attorney General has received your request for an official opinion, asking in effect:
Is it a conflict of interest for a member of a municipal planning commission to own the newspaper used by the commission to publish its legals?
¶1 Title 21 O.S. 344https://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=69107&date=9/30/1983 (1981) provides:
"Every public officer, being authorized to sell or lease any property, or make any contract in his official capacity, who voluntarily becomes interested individually in such sale, lease or contract, directly or indirectly, is guilty of a misdemeanor."
¶2 The clear language of 21 O.S. 344https://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=69107&date=9/30/1983 prohibits a public officer from making any contract in his official capacity in which he has a direct or indirect interest. Accordingly, the dispositive question is whether a member of a municipal planning commission is a public officer for purposes of this statute.
¶3 The leading Oklahoma case defining "public office" is Guthrie Daily Leader v. Cameron, 41 P. 635, 636 (Okl.1895), wherein the Court held as follows:
"A public office is the right, authority, and duty created and conferred by law, by which, for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised for the benefit of the public. The individual so invested is a public officer."
¶4 In Okla. City v. Century Indemnity Company, 62 P.2d 94,97 (Okl.1936), the Court stated:
"(a) The specific position must be created or authorized by law; (b) there must be certain definite duties imposed by law on the incumbent; and (c) they must involve the exercise of some portion of the sovereign power, 'a position which has these three elements is presumably an "office," while one which lacks any of them is mere "employment".' " (Citation omitted).
¶5 A municipal planning commission is established at 11 O.S. 45-101https://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=76537&date=9/30/1983 (1981):
"A municipal governing body may appoint a municipal planning commission whenever it is deemed expedient and may pass suitable ordinances for carrying out the provisions of this article."
¶6 11 O.S. 45-103https://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=76539&date=9/30/1983 sets forth the duties and powers of the planning commission and provides in part:
"The planning commission shall prepare from time to time plans for the betterment of the municipality as a place of residence or for business. It may consider and investigate any subject matter tending to the development and betterment of the municipality, and make recommendations as it may deem advisable concerning the adoption thereof, to any department of the municipal government, and for any purpose make or cause to be made surveys, maps or plans. The commission shall have the power and authority to employ engineers, attorneys, clerks and a secretary, or any other help deemed necessary, subject to the approval of the municipal governing body...." (Emphasis added).
¶7 Pursuant to 11 O.S. 45-103https://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=76539&date=9/30/1983 the commission shall prepare from time to time plans for the improvement and development of the municipality. The municipal planning commission may consider and investigate matters tending to the development of the municipality and make recommenda tions to departments of municipal government.
¶8 11 O.S. 45-104https://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=76540&date=9/30/1983 provides in part:
"A. Before final action may be taken by any municipality or department thereof on the location and design of any public building, statute, memorial, park, parkway, boulevard, streets and alleys, playgrounds, public grounds, or bridges, or the change in the location or grade of any street or alley, the question shall be submitted to the planning commission for investigation and report.
"B. All plans, plats, or replats of land laid out in lots or blocks, and the streets, alleys or other portions of the same, intended to be dedicated to public or private use, within the corporate limits of a municipality, shall first be submitted to the municipal planning commission for its approval or rejection; and, before such plans, plats or replats shall be entitled to record in the office of the county clerk, they must be approved by the municipal governing body. It shall be unlawful to receive or record any such plan, plat, or replat in any public office unless the same shall bear thereon, by endorsement or otherwise, the approval of the municipal governing body. The disapproval of any such plan, plat or replat by the municipal governing body shall be deemed a refusal of the proposed dedication shown thereon." (Emphasis added).
¶9 Therefore, while plans or plats must be first submitted to the municipal planning commission for its approval or rejection, the plan or plat must be approved by the municipal governing body before it is entitled to record.
"C. The municipal planning commission may exercise jurisdiction over subdivision of land and adopt regulations governing the subdivision of land within its jurisdiction. Any such regulations, before they become effective, shall be approved by the municipal governing body and shall be published as provided by law for the publication of ordinances...." (Emphasis added).
¶10 Subsection C provides that the municipal planning commission may adopt regulations governing the subdivision of land. The adoption of regulations governing the subdivision of land is a sovereign function of government of a legislative character. That the municipal governing body must approve these regulations does not alter the fact that the commission has sovereign powers. The fact that the authority of one public officer is subordinate to that of another does not prevent the former from being an officer. State v. Sowards, 82 P.2d 324, 331 (Okl. 1938). Accordingly, members of a municipal planning commission are public officers for purposes of 21 O.S. 344https://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=69107&date=9/30/1983 (1981).
¶11 It is, therefore, the official opinion of the Attorney General that:
- Under the provisions of 11 O.S. 45-101https://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=76537&date=9/30/1983 et seq. (1981), a member of a municipal planning commission is a public officer.
- Pursuant to 21 O.S. 344https://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=69107&date=9/30/1983 (1981), it is a conflict of interest for a member of a municipal planning commission to own the newspaper used by the commission to publish its legals.
MICHAEL C. TURPEN
ATTORNEY GENERAL OF OKLAHOMA
BETTY ELROD HUNTER
ASSISTANT ATTORNEY GENERAL
Citationizer© Summary of Documents Citing This Document
CONFIDENTIALITY NOTE: This transmission is protected by the Electronic Communications Privacy Act, 18 U.S.C. Sections 2510-2521 and intended to be delivered only to the named addressee(s) This e-mail message is intended only for the personal use of the recipient(s) named above. This message is or may be an attorney-client communication and as such privileged and confidential. If you are not an intended recipient, you may not review, copy or distribute this message. If you have received this communication in error, please notify us immediately by e-mail and delete the original message.
s/ David A. Davis
LAW OFFICE OF DAVID A. DAVIS
4312 N. Classen Blvd.
OKLAHOMA CITY, OK 73118
405 840-6353
405 557-0777 (FAX)
ddavislaw@live.commailto:ddavislaw@live.com
From: Kim@spadylaw.com Kim@spadylaw.com
Sent: Wednesday, October 20, 2021 1:15 PM
To: 'OAMA Luistserv' oama@lists.imla.org
Subject: [Oama] Re: conflict of interest
Are you certain a member of the planning & zoning board is a municipal officer or employee?
It’s been a while since I’ve looked at the AG opinions that discuss who is a municipal officer, but it seems like members of the planning/zoning board may not be officers.
Kim Spady
From: david davis ddavislaw@live.com
Sent: Wednesday, October 20, 2021 11:42 AM
To: Kay Robbins Wall lkrw@sbcglobal.net; OAMA Luistserv oama@lists.imla.org
Subject: [Oama] Re: conflict of interest
I agree. see statute below:
Title 11. Cities and Towns
[https://www.oscn.net/Images/Applications/search/WDFolderOpen.gif]https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.oscn.net%2Fapplications%2FOCISWeb%2Findex.asp%3Flevel%3D1%26ftdb%3DSTOKST&data=04%7C01%7C%7Ca318722b6d2446ff798d08d993f90160%7C84df9e7fe9f640afb435aaaaaaaaaaaa%7C1%7C0%7C637703519944328213%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=XrQhU6%2BwFY%2Bd96rOsr%2F3zuXAxi%2B8GmKq2xyTBXoD4Zs%3D&reserved=0Oklahoma Statutes Citationized
[https://www.oscn.net/Images/Applications/search/WDFolderOpen.gif] https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.oscn.net%2Fapplications%2FOCISWeb%2Findex.asp%3Flevel%3D1%26ftdb%3DSTOKST11&data=04%7C01%7C%7Ca318722b6d2446ff798d08d993f90160%7C84df9e7fe9f640afb435aaaaaaaaaaaa%7C1%7C0%7C637703519944338207%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=eFhQnxsnDOWw30XNxHC96UifbX%2Bw1YSKti4M0VmuW0A%3D&reserved=0 Title 11. Cities and Towns
[https://www.oscn.net/Images/Applications/search/WDFolderOpen.gif] https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.oscn.net%2Fapplications%2FOCISWeb%2Findex.asp%3Flevel%3D1%26ftdb%3DSTOKST11%23Chapter1-OklahomaMunicipalCode&data=04%7C01%7C%7Ca318722b6d2446ff798d08d993f90160%7C84df9e7fe9f640afb435aaaaaaaaaaaa%7C1%7C0%7C637703519944348208%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=hjv4MHZHLSgvowVCHhmS8aGIHhg04g0zqpl2KNxci9I%3D&reserved=0 Chapter 1 - Oklahoma Municipal Code
[https://www.oscn.net/Images/Applications/search/WDFolderOpen.gif] https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.oscn.net%2Fapplications%2FOCISWeb%2Findex.asp%3Flevel%3D1%26ftdb%3DSTOKST11%23ArticleVIII-Officers-GeneralProvisions&data=04%7C01%7C%7Ca318722b6d2446ff798d08d993f90160%7C84df9e7fe9f640afb435aaaaaaaaaaaa%7C1%7C0%7C637703519944348208%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=JjNf0j4u1geYzdvRnzma9YOymbNgyDcs4p%2BF6m5x7zg%3D&reserved=0 Article Article VIII - Officers - General Provisions
[https://www.oscn.net/Images/Applications/search/WDDocument.gif] Section 8-113 - Prohibited Conduct
Cite as: O.S. §, __ __
A. Except as otherwise provided by this section, no municipal officer or employee, or any business in which the officer, employee, or spouse of the officer or employee has a proprietary interest, shall engage in:
-
Selling, buying, or leasing property, real or personal, to or from the municipality;
-
Contracting with the municipality; or
-
Buying or bartering for or otherwise engaging in any manner in the acquisition of any bonds, warrants, or other evidence of indebtedness of the municipality.
CONFIDENTIALITY NOTE: This transmission is protected by the Electronic Communications Privacy Act, 18 U.S.C. Sections 2510-2521 and intended to be delivered only to the named addressee(s) This e-mail message is intended only for the personal use of the recipient(s) named above. This message is or may be an attorney-client communication and as such privileged and confidential. If you are not an intended recipient, you may not review, copy or distribute this message. If you have received this communication in error, please notify us immediately by e-mail and delete the original message.
s/ David A. Davis
LAW OFFICE OF DAVID A. DAVIS
4312 N. Classen Blvd.
OKLAHOMA CITY, OK 73118
405 840-6353
405 557-0777 (FAX)
ddavislaw@live.commailto:ddavislaw@live.com
From: Kay Robbins Wall <lkrw@sbcglobal.netmailto:lkrw@sbcglobal.net>
Sent: Wednesday, October 20, 2021 11:33 AM
To: OAMA Luistserv <oama@lists.imla.orgmailto:oama@lists.imla.org>
Subject: [Oama] conflict of interest
Fellow attorneys:
One of my towns has a vacancy in the Planning and Zoning Board; those positions receive no salary. I have advised that they cannot appoint a person to sit on that Board, and allow him to continue working from time to time for the Town. (He has a drone service, and occasionally we retain him to prepare an aerial photo for us.)
Of course, he could choose not to work for us while he sits on the Board, but he wants to do both. Am I correct?
Thanking you in advance for your comments.
Kay Wall
Thanks, David. Its nice when the AG has addressed a question so clearly!
Kim
From: david davis ddavislaw@live.com
Sent: Wednesday, October 20, 2021 1:44 PM
To: Kim@spadylaw.com; 'OAMA Luistserv' oama@lists.imla.org
Subject: [Oama] Re: conflict of interest
Planning commissioner is public officer per attorney general opinion below
Question Submitted by: The Honorable Bill Branch, Oklahoma State Senate
1983 OK AG 249
Decided: 09/30/1983
Oklahoma Attorney General
Cite as: 1983 OK AG 249, __ __
¶0 The Attorney General has received your request for an official opinion,
asking in effect:
Is it a conflict of interest for a member of a municipal planning commission
to own the newspaper used by the commission to publish its legals?
¶1 Title
<https://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=69107&dat
e=9/30/1983> 21 O.S. 344 (1981) provides:
"Every public officer, being authorized to sell or lease any property, or
make any contract in his official capacity, who voluntarily becomes
interested individually in such sale, lease or contract, directly or
indirectly, is guilty of a misdemeanor."
¶2 The clear language of
<https://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=69107&dat
e=9/30/1983> 21 O.S. 344 prohibits a public officer from making any contract
in his official capacity in which he has a direct or indirect interest.
Accordingly, the dispositive question is whether a member of a municipal
planning commission is a public officer for purposes of this statute.
¶3 The leading Oklahoma case defining "public office" is Guthrie Daily
Leader v. Cameron, 41 P. 635, 636 (Okl.1895), wherein the Court held as
follows:
"A public office is the right, authority, and duty created and conferred by
law, by which, for a given period, either fixed by law or enduring at the
pleasure of the creating power, an individual is invested with some portion
of the sovereign functions of the government, to be exercised for the
benefit of the public. The individual so invested is a public officer."
¶4 In Okla. City v. Century Indemnity Company, 62 P.2d 94,97 (Okl.1936), the
Court stated:
"(a) The specific position must be created or authorized by law; (b) there
must be certain definite duties imposed by law on the incumbent; and (c)
they must involve the exercise of some portion of the sovereign power, 'a
position which has these three elements is presumably an "office," while one
which lacks any of them is mere "employment".' " (Citation omitted).
¶5 A municipal planning commission is established at
<https://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=76537&dat
e=9/30/1983> 11 O.S. 45-101 (1981):
"A municipal governing body may appoint a municipal planning commission
whenever it is deemed expedient and may pass suitable ordinances for
carrying out the provisions of this article."
¶6
<https://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=76539&dat
e=9/30/1983> 11 O.S. 45-103 sets forth the duties and powers of the planning
commission and provides in part:
"The planning commission shall prepare from time to time plans for the
betterment of the municipality as a place of residence or for business. It
may consider and investigate any subject matter tending to the development
and betterment of the municipality, and make recommendations as it may deem
advisable concerning the adoption thereof, to any department of the
municipal government, and for any purpose make or cause to be made surveys,
maps or plans. The commission shall have the power and authority to employ
engineers, attorneys, clerks and a secretary, or any other help deemed
necessary, subject to the approval of the municipal governing body...."
(Emphasis added).
¶7 Pursuant to
<https://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=76539&dat
e=9/30/1983> 11 O.S. 45-103 the commission shall prepare from time to time
plans for the improvement and development of the municipality. The municipal
planning commission may consider and investigate matters tending to the
development of the municipality and make recommenda tions to departments of
municipal government.
¶8
<https://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=76540&dat
e=9/30/1983> 11 O.S. 45-104 provides in part:
"A. Before final action may be taken by any municipality or department
thereof on the location and design of any public building, statute,
memorial, park, parkway, boulevard, streets and alleys, playgrounds, public
grounds, or bridges, or the change in the location or grade of any street or
alley, the question shall be submitted to the planning commission for
investigation and report.
"B. All plans, plats, or replats of land laid out in lots or blocks, and the
streets, alleys or other portions of the same, intended to be dedicated to
public or private use, within the corporate limits of a municipality, shall
first be submitted to the municipal planning commission for its approval or
rejection; and, before such plans, plats or replats shall be entitled to
record in the office of the county clerk, they must be approved by the
municipal governing body. It shall be unlawful to receive or record any such
plan, plat, or replat in any public office unless the same shall bear
thereon, by endorsement or otherwise, the approval of the municipal
governing body. The disapproval of any such plan, plat or replat by the
municipal governing body shall be deemed a refusal of the proposed
dedication shown thereon." (Emphasis added).
¶9 Therefore, while plans or plats must be first submitted to the municipal
planning commission for its approval or rejection, the plan or plat must be
approved by the municipal governing body before it is entitled to record.
"C. The municipal planning commission may exercise jurisdiction over
subdivision of land and adopt regulations governing the subdivision of land
within its jurisdiction. Any such regulations, before they become effective,
shall be approved by the municipal governing body and shall be published as
provided by law for the publication of ordinances...." (Emphasis added).
¶10 Subsection C provides that the municipal planning commission may adopt
regulations governing the subdivision of land. The adoption of regulations
governing the subdivision of land is a sovereign function of government of a
legislative character. That the municipal governing body must approve these
regulations does not alter the fact that the commission has sovereign
powers. The fact that the authority of one public officer is subordinate to
that of another does not prevent the former from being an officer. State v.
Sowards, 82 P.2d 324, 331 (Okl. 1938). Accordingly, members of a municipal
planning commission are public officers for purposes of
<https://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=69107&dat
e=9/30/1983> 21 O.S. 344 (1981).
¶11 It is, therefore, the official opinion of the Attorney General that:
- Under the provisions of
<https://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=76537&dat
e=9/30/1983> 11 O.S. 45-101 et seq. (1981), a member of a municipal planning
commission is a public officer. - Pursuant to
<https://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=69107&dat
e=9/30/1983> 21 O.S. 344 (1981), it is a conflict of interest for a member
of a municipal planning commission to own the newspaper used by the
commission to publish its legals.
MICHAEL C. TURPEN
ATTORNEY GENERAL OF OKLAHOMA
BETTY ELROD HUNTER
ASSISTANT ATTORNEY GENERAL
Citationizer© Summary of Documents Citing This Document
CONFIDENTIALITY NOTE: This transmission is protected by the Electronic
Communications Privacy Act, 18 U.S.C. Sections 2510-2521 and intended to be
delivered only to the named addressee(s) This e-mail message is intended
only for the personal use of the recipient(s) named above. This message is
or may be an attorney-client communication and as such privileged and
confidential. If you are not an intended recipient, you may not review, copy
or distribute this message. If you have received this communication in
error, please notify us immediately by e-mail and delete the original
message.
s/ David A. Davis
LAW OFFICE OF DAVID A. DAVIS
4312 N. Classen Blvd.
OKLAHOMA CITY, OK 73118
405 840-6353
405 557-0777 (FAX)
ddavislaw@live.com mailto:ddavislaw@live.com
From: Kim@spadylaw.com mailto:Kim@spadylaw.com <Kim@spadylaw.com
mailto:Kim@spadylaw.com >
Sent: Wednesday, October 20, 2021 1:15 PM
To: 'OAMA Luistserv' <oama@lists.imla.org mailto:oama@lists.imla.org >
Subject: [Oama] Re: conflict of interest
Are you certain a member of the planning & zoning board is a municipal
officer or employee?
Its been a while since Ive looked at the AG opinions that discuss who is a
municipal officer, but it seems like members of the planning/zoning board
may not be officers.
Kim Spady
From: david davis <ddavislaw@live.com mailto:ddavislaw@live.com >
Sent: Wednesday, October 20, 2021 11:42 AM
To: Kay Robbins Wall <lkrw@sbcglobal.net mailto:lkrw@sbcglobal.net >; OAMA
Luistserv <oama@lists.imla.org mailto:oama@lists.imla.org >
Subject: [Oama] Re: conflict of interest
I agree. see statute below:
Title 11. Cities and Towns
<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.oscn.n
et%2Fapplications%2FOCISWeb%2Findex.asp%3Flevel%3D1%26ftdb%3DSTOKST&data=04%
7C01%7C%7Ca318722b6d2446ff798d08d993f90160%7C84df9e7fe9f640afb435aaaaaaaaaaa
a%7C1%7C0%7C637703519944328213%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiL
CJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=XrQhU6%2BwFY%2Bd9
6rOsr%2F3zuXAxi%2B8GmKq2xyTBXoD4Zs%3D&reserved=0> Oklahoma Statutes
Citationized
<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.oscn.n
et%2Fapplications%2FOCISWeb%2Findex.asp%3Flevel%3D1%26ftdb%3DSTOKST11&data=0
4%7C01%7C%7Ca318722b6d2446ff798d08d993f90160%7C84df9e7fe9f640afb435aaaaaaaaa
aaa%7C1%7C0%7C637703519944338207%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDA
iLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=eFhQnxsnDOWw30X
NxHC96UifbX%2Bw1YSKti4M0VmuW0A%3D&reserved=0> Title 11. Cities and Towns
<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.oscn.n
et%2Fapplications%2FOCISWeb%2Findex.asp%3Flevel%3D1%26ftdb%3DSTOKST11%23Chap
ter1-OklahomaMunicipalCode&data=04%7C01%7C%7Ca318722b6d2446ff798d08d993f9016
0%7C84df9e7fe9f640afb435aaaaaaaaaaaa%7C1%7C0%7C637703519944348208%7CUnknown%
7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn
0%3D%7C1000&sdata=hjv4MHZHLSgvowVCHhmS8aGIHhg04g0zqpl2KNxci9I%3D&reserved=0>
Chapter 1 - Oklahoma Municipal Code
<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.oscn.n
et%2Fapplications%2FOCISWeb%2Findex.asp%3Flevel%3D1%26ftdb%3DSTOKST11%23Arti
cleVIII-Officers-GeneralProvisions&data=04%7C01%7C%7Ca318722b6d2446ff798d08d
993f90160%7C84df9e7fe9f640afb435aaaaaaaaaaaa%7C1%7C0%7C637703519944348208%7C
Unknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLC
JXVCI6Mn0%3D%7C1000&sdata=JjNf0j4u1geYzdvRnzma9YOymbNgyDcs4p%2BF6m5x7zg%3D&r
eserved=0> Article Article VIII - Officers - General Provisions
https://www.oscn.net/Images/Applications/search/WDDocument.gif
Section 8-113 - Prohibited Conduct
Cite as: O.S. §, __ __
A. Except as otherwise provided by this section, no municipal officer or
employee, or any business in which the officer, employee, or spouse of the
officer or employee has a proprietary interest, shall engage in:
-
Selling, buying, or leasing property, real or personal, to or from the
municipality; -
Contracting with the municipality; or
-
Buying or bartering for or otherwise engaging in any manner in the
acquisition of any bonds, warrants, or other evidence of indebtedness of the
municipality.
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message.
s/ David A. Davis
LAW OFFICE OF DAVID A. DAVIS
4312 N. Classen Blvd.
OKLAHOMA CITY, OK 73118
405 840-6353
405 557-0777 (FAX)
ddavislaw@live.com mailto:ddavislaw@live.com
From: Kay Robbins Wall <lkrw@sbcglobal.net mailto:lkrw@sbcglobal.net >
Sent: Wednesday, October 20, 2021 11:33 AM
To: OAMA Luistserv <oama@lists.imla.org mailto:oama@lists.imla.org >
Subject: [Oama] conflict of interest
Fellow attorneys:
One of my towns has a vacancy in the Planning and Zoning Board; those
positions receive no salary. I have advised that they cannot appoint a
person to sit on that Board, and allow him to continue working from time to
time for the Town. (He has a drone service, and occasionally we retain him
to prepare an aerial photo for us.)
Of course, he could choose not to work for us while he sits on the Board,
but he wants to do both. Am I correct?
Thanking you in advance for your comments.
Kay Wall