I don't believe that the appointment of individuals to fill vacated planning and zoning committee seats is permissible in executive session even though the planning and zoning members receive a monthly check ($25.00). I don't think that makes them "salaried" employees or officers. Am I correct about that? 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*.

What does the charter or ordinance say about the payment? That amount would seem to be something akin to a stipend, not a “salary.” Also, I suspect that there is nothing withheld from the check as would generally be required for an “employee.” As a general statement, I agree that appointments to any board, commission or other group would need to be completed in an open meeting. Jonathan E. Miller City Attorney City of Mustang 1501 N. Mustang Road Mustang, Oklahoma 73064 Telephone: (405) 376-7746 Facsimile: (405) 376-7721 This email is sent by the City Attorney and may contain information that is privileged or confidential. If you received this email in error, please notify the sender by reply email and delete the email and any attachments. If you are a and officer, employee or agent of the City of Mustang, you should not share this email with others. Sharing this email may result in a loss of the attorney-client privilege. From: Phillip Morton <mortonlawoffice@gmail.com> Sent: Wednesday, December 8, 2021 4:11 PM To: oama@lists.imla.org Subject: [CAUTION: SUSPECT SENDER] [Oama] Salaried Employee and Executive Session I don't believe that the appointment of individuals to fill vacated planning and zoning committee seats is permissible in executive session even though the planning and zoning members receive a monthly check ($25.00). I don't think that makes them "salaried" employees or officers. Am I correct about that? Phillip N. Morton, J.D. P.O. Box 1886 Ada, OK 74820 Phone: 580-759-0049 Fax: 580-759-2177 Email: MortonLawOffice@gmail.com<mailto: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.

There is an AG's opinion I can find if you want, but it dealt with the ORA language about holding an ES for Officers (as compared to employees). The opinion related to the ability to hold an ES regarding the appointment of a County Commissioner to fill a vacancy. While the County Commissioner is not an employee, they are legally an "officer" of the County. And because they are compensated, they met the salaried officer requirement. There is an AG's opinion that holds that Planning Commissioners are Officers of the City. But I don't think a nominal stipend would be enough to meet the "salaried" requirement. I can try to dig up those AG opinions if you want tomorrow - just let me know. On Wed, Dec 8, 2021 at 4:45 PM Jon Miller <JMiller@cityofmustang.org> wrote: > What does the charter or ordinance say about the payment? That amount > would seem to be something akin to a stipend, not a “salary.” Also, I > suspect that there is nothing withheld from the check as would generally be > required for an “employee.” As a general statement, I agree that > appointments to any board, commission or other group would need to be > completed in an open meeting. > > > > Jonathan E. Miller > > City Attorney > > City of Mustang > > 1501 N. Mustang Road > > Mustang, Oklahoma 73064 > > Telephone: (405) 376-7746 > > Facsimile: (405) 376-7721 > > > > > > This email is sent by the City Attorney and may contain information that > is privileged or confidential. If you received this email in error, please > notify the sender by reply email and delete the email and any attachments. > If you are a and officer, employee or agent of the City of Mustang, you > should not share this email with others. Sharing this email may result in > a loss of the attorney-client privilege. > > > > > > > > *From:* Phillip Morton <mortonlawoffice@gmail.com> > *Sent:* Wednesday, December 8, 2021 4:11 PM > *To:* oama@lists.imla.org > *Subject:* [CAUTION: SUSPECT SENDER] [Oama] Salaried Employee and > Executive Session > > > > I don't believe that the appointment of individuals to fill vacated > planning and zoning committee seats is permissible in executive session > even though the planning and zoning members receive a monthly check > ($25.00). I don't think that makes them "salaried" employees or officers. > Am I correct about that? > > > 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*. > -- > Oama mailing list -- oama@lists.imla.org > To unsubscribe send an email to oama-leave@lists.imla.org >

Following up to offer the cites and a explanation. Planning Commissioner is a public "Office" / "Officer": 1977 OK AG 179 <https://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=264016>, P5 ("the position of Municipal Planning Commission Member" is a public Office / Officer for 51 O.S. 6 purposes, citing prior AG opinions that are not available on OSCN, 1970 OK AG 228 and 1966 OK AG 353). 1983 OK 176 <https://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=57641> (citing the 1977, 1970 and 1966 AG opinions and holding that a Planning Commissioner is a Office of the Municipal Government for 11 O.S. 8-106 purposes). The "Office" / "Officer" test is normally the common law test. The AG"s position in the 1983 opinion is a little suspect as to the interpretation of who is a Municipal Officer for 8-106 purposes, given the Title 11 definition of "Officer" as being elected offices and the Clerk and Treasurer whether appointed or elected. A Planning Commissioner wouldn't meet that statutory definition. But for OMA purposes, the common law test is used (the OMA is, after all, not in Title 11). And the AG has cited the 1977 opinion recently as it relates to the application of the common law test for a public Office/Officer. *See *2018 OK AG 11 <https://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=483298>, n.5 (noting that the more narrow Title 11 definition hasn't been used when interpreting who is an Officer for purposes of non-Title 11 statutes, like 51 O.S. 6, citing 1977 OK AG 179). 307(b)(1) allows for an ES to discuss the appointment of a salaried public official: 1992 OK AG 23 <https://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=62067> (ES could be held to consider who to appoint to fill a vacant County Commissioner seat; noting that other State's only allow for ES to discuss employees and not officials, but that "Oklahoma has no such limitations on the scope of executive sessions."). So 307(b)(1) let's you hold an ES to discuss the appointment of a salaried public official, a Planning Commissioner is a public official, so whether you can hold the ES in your situation would turn on whether your Planning Commissioners are "salaried" public officials. I'm not aware of any case or AG opinion that has addressed what amount of compensation is sufficient to push a person into "salaried" status. I don't think B1 is limited to people who are paid as an exempt salaried (rather than hourly) employee or public officer. But remembering that the OMA is adopted for the benefit of the public, and that we lose close cases, I would be leery about using a B1 to discuss appointing a person to a public office that only pays $25 a month. Yes, it receives a form of compensation, so a statutory argument can be made. But we also know that public entities lose every close case. Bottom line, if your PC received no form of compensation, the answer would be easy. Because they receive some, nominal monthly compensation, it creates an argument that B1 can be used. But it's not a clear cut answer, and those are the ones that always give me a knot in my stomach. Matt On Wed, Dec 8, 2021 at 5:46 PM Matt Love <matt.love@gmail.com> wrote: > There is an AG's opinion I can find if you want, but it dealt with the ORA > language about holding an ES for Officers (as compared to employees). The > opinion related to the ability to hold an ES regarding the appointment of a > County Commissioner to fill a vacancy. While the County Commissioner is not > an employee, they are legally an "officer" of the County. And because they > are compensated, they met the salaried officer requirement. > > There is an AG's opinion that holds that Planning Commissioners are > Officers of the City. But I don't think a nominal stipend would be enough > to meet the "salaried" requirement. > > I can try to dig up those AG opinions if you want tomorrow - just let me > know. > > On Wed, Dec 8, 2021 at 4:45 PM Jon Miller <JMiller@cityofmustang.org> > wrote: > >> What does the charter or ordinance say about the payment? That amount >> would seem to be something akin to a stipend, not a “salary.” Also, I >> suspect that there is nothing withheld from the check as would generally be >> required for an “employee.” As a general statement, I agree that >> appointments to any board, commission or other group would need to be >> completed in an open meeting. >> >> >> >> Jonathan E. Miller >> >> City Attorney >> >> City of Mustang >> >> 1501 N. Mustang Road >> >> Mustang, Oklahoma 73064 >> >> Telephone: (405) 376-7746 >> >> Facsimile: (405) 376-7721 >> >> >> >> >> >> This email is sent by the City Attorney and may contain information that >> is privileged or confidential. If you received this email in error, please >> notify the sender by reply email and delete the email and any attachments. >> If you are a and officer, employee or agent of the City of Mustang, you >> should not share this email with others. Sharing this email may result in >> a loss of the attorney-client privilege. >> >> >> >> >> >> >> >> *From:* Phillip Morton <mortonlawoffice@gmail.com> >> *Sent:* Wednesday, December 8, 2021 4:11 PM >> *To:* oama@lists.imla.org >> *Subject:* [CAUTION: SUSPECT SENDER] [Oama] Salaried Employee and >> Executive Session >> >> >> >> I don't believe that the appointment of individuals to fill vacated >> planning and zoning committee seats is permissible in executive session >> even though the planning and zoning members receive a monthly check >> ($25.00). I don't think that makes them "salaried" employees or officers. >> Am I correct about that? >> >> >> 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*. >> -- >> Oama mailing list -- oama@lists.imla.org >> To unsubscribe send an email to oama-leave@lists.imla.org >> >