Re: [Oama] Absentee Council Member
Thank you all for the terrific insight. However I have a follow up issue.
I don't believe that health is an issue for this particular council-member,
but in case it comes up in this instance or in the future, does anyone
have advice on whether an executive session would be appropriate to place
on the agenda in case there is an issue regarding possible HIPPA protected
information or anything else which may be of a similarly protected status?
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
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notify us by replying to this email or by calling 580-759-0049.
On Sat, Jan 4, 2020 at 5:43 PM MICHAEL WARWICK warwickmp@aol.com wrote:
There is a case on the subject. I’m not where I can get the cite. It is
not automatic
Sent from my iPhone
On Jan 3, 2020, at 4:44 PM, Phillip Morton mortonlawoffice@gmail.com
wrote:
One of the towns I represent has encountered an issue with an absentee
council member. I am in the process of verifying the council member's
attendance record, but my understanding is that the member meets
requirements of 11 O.S. 8-108, which says: 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) months, he shall thereupon cease to hold office.
My question is what are the procedures once a council member triggers this
statute? Is a council vote required to remove the member? Is notice or
publication of the situation required? Is there an appeals process? The
statute reads like removal is automatic, but surely it isn't that simple.
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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I do not believe the statute/ordinance takes health into consideration. Missing is missing and that is the long and short of it.
Harlan Pinkerton
Sand Springs
Disney
Sent from my iPhone
On Jan 17, 2020, at 11:43 AM, Phillip Morton mortonlawoffice@gmail.com wrote:
Thank you all for the terrific insight. However I have a follow up issue.
I don't believe that health is an issue for this particular council-member, but in case it comes up in this instance or in the future, does anyone have advice on whether an executive session would be appropriate to place on the agenda in case there is an issue regarding possible HIPPA protected information or anything else which may be of a similarly protected status?
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.
On Sat, Jan 4, 2020 at 5:43 PM MICHAEL WARWICK warwickmp@aol.com wrote:
There is a case on the subject. I’m not where I can get the cite. It is not automatic
Sent from my iPhone
On Jan 3, 2020, at 4:44 PM, Phillip Morton mortonlawoffice@gmail.com wrote:
One of the towns I represent has encountered an issue with an absentee council member. I am in the process of verifying the council member's attendance record, but my understanding is that the member meets requirements of 11 O.S. 8-108, which says: 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) months, he shall thereupon cease to hold office.
My question is what are the procedures once a council member triggers this statute? Is a council vote required to remove the member? Is notice or publication of the situation required? Is there an appeals process? The statute reads like removal is automatic, but surely it isn't that simple.
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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If there is information to which HIPAA applies, Health Insurance Portability and Accountability Act of 1996, then certainly hold an executive session as a matter involving personnel. However, remember that this does not call into protection all health information. The person may have waived protection. The information could have been given in a non-confidential setting or for some purpose other than obtaining health care in some form.
Still, it is best to err on the side that assumes HIPAA applies unless you know differently.
Mike Vanderburg
Ponca City
From: Oama [mailto:oama-bounces@lists.imla.org] On Behalf Of Phillip Morton
Sent: Friday, January 17, 2020 11:43 AM
To: MICHAEL WARWICK; oama@lists.imla.org
Subject: Re: [Oama] Absentee Council Member
CAUTION: This email originated from outside of the organization. Do not click any links or open any attachments unless you recognize the sender and know the content is safe.
Thank you all for the terrific insight. However I have a follow up issue.
I don't believe that health is an issue for this particular council-member, but in case it comes up in this instance or in the future, does anyone have advice on whether an executive session would be appropriate to place on the agenda in case there is an issue regarding possible HIPPA protected information or anything else which may be of a similarly protected status?
Phillip N. Morton, J.D.
P.O. Box 1886
Ada, OK 74820
Phone: 580-759-0049
Fax: 580-759-2177
Email: MortonLawOffice@gmail.commailto: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.
On Sat, Jan 4, 2020 at 5:43 PM MICHAEL WARWICK <warwickmp@aol.commailto:warwickmp@aol.com> wrote:
There is a case on the subject. I’m not where I can get the cite. It is not automatic
Sent from my iPhone
On Jan 3, 2020, at 4:44 PM, Phillip Morton <mortonlawoffice@gmail.commailto:mortonlawoffice@gmail.com> wrote:
One of the towns I represent has encountered an issue with an absentee council member. I am in the process of verifying the council member's attendance record, but my understanding is that the member meets requirements of 11 O.S. 8-108, which says: 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) months, he shall thereupon cease to hold office.
My question is what are the procedures once a council member triggers this statute? Is a council vote required to remove the member? Is notice or publication of the situation required? Is there an appeals process? The statute reads like removal is automatic, but surely it isn't that simple.
Phillip N. Morton, J.D.
P.O. Box 1886
Ada, OK 74820
Phone: 580-759-0049
Fax: 580-759-2177
Email: MortonLawOffice@gmail.commailto: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.orgmailto:Oama@lists.imla.org
http://lists.imla.org/mailman/listinfo/oama_lists.imla.org
1996 OK AG 98. I believe this is on point to the absentee Council member issue.
Ҧ9 It is therefore, the official Opinion of the Attorney General, that:
- 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.
- 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.
- 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.
- 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.”
From: Oama [mailto:oama-bounces@lists.imla.org] On Behalf Of Michael R. Vanderburg
Sent: Friday, January 17, 2020 1:39 PM
To: 'Phillip Morton' mortonlawoffice@gmail.com; MICHAEL WARWICK warwickmp@aol.com; oama@lists.imla.org
Subject: Re: [Oama] Absentee Council Member
If there is information to which HIPAA applies, Health Insurance Portability and Accountability Act of 1996, then certainly hold an executive session as a matter involving personnel. However, remember that this does not call into protection all health information. The person may have waived protection. The information could have been given in a non-confidential setting or for some purpose other than obtaining health care in some form.
Still, it is best to err on the side that assumes HIPAA applies unless you know differently.
Mike Vanderburg
Ponca City
From: Oama [mailto:oama-bounces@lists.imla.org] On Behalf Of Phillip Morton
Sent: Friday, January 17, 2020 11:43 AM
To: MICHAEL WARWICK; oama@lists.imla.orgmailto:oama@lists.imla.org
Subject: Re: [Oama] Absentee Council Member
CAUTION: This email originated from outside of the organization. Do not click any links or open any attachments unless you recognize the sender and know the content is safe.
Thank you all for the terrific insight. However I have a follow up issue.
I don't believe that health is an issue for this particular council-member, but in case it comes up in this instance or in the future, does anyone have advice on whether an executive session would be appropriate to place on the agenda in case there is an issue regarding possible HIPPA protected information or anything else which may be of a similarly protected status?
Phillip N. Morton, J.D.
P.O. Box 1886
Ada, OK 74820
Phone: 580-759-0049
Fax: 580-759-2177
Email: MortonLawOffice@gmail.commailto: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.
On Sat, Jan 4, 2020 at 5:43 PM MICHAEL WARWICK <warwickmp@aol.commailto:warwickmp@aol.com> wrote:
There is a case on the subject. I’m not where I can get the cite. It is not automatic
Sent from my iPhone
On Jan 3, 2020, at 4:44 PM, Phillip Morton <mortonlawoffice@gmail.commailto:mortonlawoffice@gmail.com> wrote:
One of the towns I represent has encountered an issue with an absentee council member. I am in the process of verifying the council member's attendance record, but my understanding is that the member meets requirements of 11 O.S. 8-108, which says: 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) months, he shall thereupon cease to hold office.
My question is what are the procedures once a council member triggers this statute? Is a council vote required to remove the member? Is notice or publication of the situation required? Is there an appeals process? The statute reads like removal is automatic, but surely it isn't that simple.
Phillip N. Morton, J.D.
P.O. Box 1886
Ada, OK 74820
Phone: 580-759-0049
Fax: 580-759-2177
Email: MortonLawOffice@gmail.commailto: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
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The question presented in this thread is “what process should be used to declare the vacancy?” The AG Opinion cited by Mr. Beason is very helpful. OMAG counsels that governing bodies should schedule an item on the Agenda with appropriate notice to the officeholder to be disqualified with opportunity to be heard at the public meeting regarding why the governing body should not find for disqualification. The AG Opinion identified 51 O.S. §§1,2, & 8 as who or what entity actually determines that the vacancy exists. The case of Nesbitt v. Apple, 891 P.2d 1235, 1241 (Okla. 1995), is cited for the Oklahoma Supreme Court’s view that notice and opportunity to be heard is a minimum due process protection that should be afforded the office holder to be disqualified.
Jeff Bryant
Jeff H Bryant
Director of Legal Services
Associate General Counsel
jbryant@omag.orgmailto:jbryant@omag.org
[OMAG Small Logo Smooth]
3650 S. Boulevard
Edmond, Oklahoma 73013
Phone: 405-657-1419
Fax: 405-657-1401
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From: Oama oama-bounces@lists.imla.org On Behalf Of Michael Beason
Sent: Friday, January 17, 2020 1:46 PM
To: Michael R. Vanderburg vandemr@poncacityok.gov; 'Phillip Morton' mortonlawoffice@gmail.com; MICHAEL WARWICK warwickmp@aol.com; oama@lists.imla.org
Subject: Re: [Oama] Absentee Council Member
1996 OK AG 98. I believe this is on point to the absentee Council member issue.
Ҧ9 It is therefore, the official Opinion of the Attorney General, that:
- 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.
- 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.
- 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.
- 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.”
From: Oama [mailto:oama-bounces@lists.imla.org] On Behalf Of Michael R. Vanderburg
Sent: Friday, January 17, 2020 1:39 PM
To: 'Phillip Morton' <mortonlawoffice@gmail.commailto:mortonlawoffice@gmail.com>; MICHAEL WARWICK <warwickmp@aol.commailto:warwickmp@aol.com>; oama@lists.imla.orgmailto:oama@lists.imla.org
Subject: Re: [Oama] Absentee Council Member
If there is information to which HIPAA applies, Health Insurance Portability and Accountability Act of 1996, then certainly hold an executive session as a matter involving personnel. However, remember that this does not call into protection all health information. The person may have waived protection. The information could have been given in a non-confidential setting or for some purpose other than obtaining health care in some form.
Still, it is best to err on the side that assumes HIPAA applies unless you know differently.
Mike Vanderburg
Ponca City
From: Oama [mailto:oama-bounces@lists.imla.org] On Behalf Of Phillip Morton
Sent: Friday, January 17, 2020 11:43 AM
To: MICHAEL WARWICK; oama@lists.imla.orgmailto:oama@lists.imla.org
Subject: Re: [Oama] Absentee Council Member
CAUTION: This email originated from outside of the organization. Do not click any links or open any attachments unless you recognize the sender and know the content is safe.
Thank you all for the terrific insight. However I have a follow up issue.
I don't believe that health is an issue for this particular council-member, but in case it comes up in this instance or in the future, does anyone have advice on whether an executive session would be appropriate to place on the agenda in case there is an issue regarding possible HIPPA protected information or anything else which may be of a similarly protected status?
Phillip N. Morton, J.D.
P.O. Box 1886
Ada, OK 74820
Phone: 580-759-0049
Fax: 580-759-2177
Email: MortonLawOffice@gmail.commailto: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.
On Sat, Jan 4, 2020 at 5:43 PM MICHAEL WARWICK <warwickmp@aol.commailto:warwickmp@aol.com> wrote:
There is a case on the subject. I’m not where I can get the cite. It is not automatic
Sent from my iPhone
On Jan 3, 2020, at 4:44 PM, Phillip Morton <mortonlawoffice@gmail.commailto:mortonlawoffice@gmail.com> wrote:
One of the towns I represent has encountered an issue with an absentee council member. I am in the process of verifying the council member's attendance record, but my understanding is that the member meets requirements of 11 O.S. 8-108, which says: 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) months, he shall thereupon cease to hold office.
My question is what are the procedures once a council member triggers this statute? Is a council vote required to remove the member? Is notice or publication of the situation required? Is there an appeals process? The statute reads like removal is automatic, but surely it isn't that simple.
Phillip N. Morton, J.D.
P.O. Box 1886
Ada, OK 74820
Phone: 580-759-0049
Fax: 580-759-2177
Email: MortonLawOffice@gmail.commailto: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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