I represent 2 cities and have always taken the position that I am an independent contractor and therefore my contract renewal/employment is not proper for executive session. However, since I am also cautious, my contract requires them to pay me (withholding etc) as though I am an employee to prevent any squabble with the IRS. As a benefit, I am eligible to participate (purchase by payroll deduction) certain benefits like dental and vision insurance.  MIKE WARWICK OBA #9377MICHAEL P WARWICK INC.400 N BROADWAY, PO BOX 1211405-273-1554 (O) 405-395-4650 (F) This communication, and any documents attached thereto, are covered by the Electronics Communications Privacy Act, and are protected by the Attorney/Client and/or Attorney Work Product Privilege. This communication is intended only for the use of the intended recipient. If you are not the intended recipient,you are hereby notified that any reading, disclosure, copying, distribution, or action regarding the communication is prohibited. If you have received this communication in error, please notify the sender and delete the communication and attached documents, if any.  -----Original Message----- From: Chuck Thompson <cthompson@imla.org> To: Robert Thompson <rthompson@cheekfalcone.com>; Mark Ramsey <MRamsey@soonerlaw.com>; Ray Vincent <CityAttorney@choctawcity.org>; Toni Capra <capralawfirm@gmail.com>; Beech, Johnny <jbeech@spencerfane.com>; Michael Beason <mbeason@altusok.gov>; oama@lists.imla.org <oama@lists.imla.org> Sent: Tue, Mar 10, 2020 10:53 am Subject: Re: [Oama] Executive Session Items #yiv3858683065 #yiv3858683065 -- _filtered {} _filtered {} _filtered {} _filtered {} _filtered {} #yiv3858683065 #yiv3858683065 p.yiv3858683065MsoNormal, #yiv3858683065 li.yiv3858683065MsoNormal, #yiv3858683065 div.yiv3858683065MsoNormal {margin:0in;margin-bottom:.0001pt;font-size:11.0pt;font-family:sans-serif;} #yiv3858683065 a:link, #yiv3858683065 span.yiv3858683065MsoHyperlink {color:blue;text-decoration:underline;} #yiv3858683065 a:visited, #yiv3858683065 span.yiv3858683065MsoHyperlinkFollowed {color:#954F72;text-decoration:underline;} #yiv3858683065 p.yiv3858683065msonormal0, #yiv3858683065 li.yiv3858683065msonormal0, #yiv3858683065 div.yiv3858683065msonormal0 {margin-right:0in;margin-left:0in;font-size:11.0pt;font-family:sans-serif;} #yiv3858683065 span.yiv3858683065EmailStyle18 {font-family:sans-serif;color:windowtext;} #yiv3858683065 span.yiv3858683065EmailStyle19 {font-family:sans-serif;color:windowtext;} #yiv3858683065 span.yiv3858683065EmailStyle22 {font-family:sans-serif;color:windowtext;} #yiv3858683065 span.yiv3858683065EmailStyle23 {font-family:sans-serif;color:windowtext;} #yiv3858683065 .yiv3858683065MsoChpDefault {font-size:10.0pt;} _filtered {} #yiv3858683065 div.yiv3858683065WordSection1 {} #yiv3858683065 Folks, sorry to jump in from outside OK, but the issue of whether the city attorney is an employee or independent contractor has been something we’ve tried to follow from the perch of offering amicus assistance to members when the IRS swoops in and claims the outside attorney is an employee.  The issue is complicated and our model city attorney contract which should be available on our website offers some help but no guarantees. (There’s one for in-house and one for outside counsel) We’ve participated in two appeals of  determinations that the contract city attorney is an employee and in each case the decision was overturned within the IRS administrative process. To the extent an attorney represents a city as part of a private practice just as any other client, we argue that the attorney is no more an employee of the city than any other client.  Where the issue becomes more likely to go the other way are the situations where the attorney receives benefits from the city that are available only  to employees and where the relationship compares differently from that of other clients.  This analysis offers little in response to the question of open meetings exceptions and for that I apologize, but if you have the issue arise with the IRS and are an IMLA member we will try to offer whatever assistance we can. The penalties for misidentification can be significant and obviously embarrassing since the client will be penalized.  Chuck   |   | |   Charles W. Thompson, Jr. Executive Director/General Counsel International Municipal Lawyers Association, Inc. | | | A 51 Monroe St., Suite 404, Rockville, MD 20850 | |       | | P (202) 466-5424 ext. 7110      M (240) 876-6790 D (202) 742-1016 | |   | | Wwww.imla.org | | |    Plan Ahead! | |      IMLA’s 2020Mid-Year Seminar, April 24-27 in Washington, D.C.!    IMLA’s 85thAnnual Conference, September 23-27 in Riverside County, CA!            From: Oama <oama-bounces@lists.imla.org> On Behalf OfRobert Thompson Sent: Tuesday, March 10, 2020 11:37 AM To: Mark Ramsey <MRamsey@soonerlaw.com>; Ray Vincent <CityAttorney@choctawcity.org>; Toni Capra <capralawfirm@gmail.com>; Beech, Johnny <jbeech@spencerfane.com>; Michael Beason <mbeason@altusok.gov>; oama@lists.imla.org Subject: Re: [Oama] Executive Session Items   I represent two municipalities on a contract basis.   One of the cities treats me as an employee,  with payroll deductions from the monthly retainer,  and does it because they insist that the IRS requires them to do it.       Robert C. Thompson Cheek & Falcone, PLLC 6301 Waterford Blvd., Suite 320 Oklahoma City,  Okla.  73118 direct telephone:405-286-9560 direct fax: 405-286-9680 Firm telephone: 405-286-9191 rthompson@cheekfalcone.com   CONFIDENTIALITY NOTE: This e-mail and any attachments may contain confidential information that is protected by legal privilege.  If you are not the intended recipient, be aware that any disclosure, copying, distribution or use of this e-mail or any attachment is prohibited.  If you have received this e-mail in error, please notify us immediately by returning it to the sender and delete this copy from your system.  Thank you for your cooperation. Visit us at our website http://www.cheekfalcone.com/   From: Oama <oama-bounces@lists.imla.org>On Behalf Of Mark Ramsey Sent: Tuesday, March 10, 2020 10:33 AM To: Ray Vincent <CityAttorney@choctawcity.org>; Toni Capra <capralawfirm@gmail.com>; Beech, Johnny <jbeech@spencerfane.com>; Michael Beason <mbeason@altusok.gov>; oama@lists.imla.org Subject: Re: [Oama] Executive Session Items   Depends.  Small Towns usually use an independent contractor.  Some ordinances make the City/Town attorney an officer, but no term so about the same as an independent contractor subject to removal/termination at will.   Mark H. Ramsey For the Firm Taylor, Foster, Mallett, Downs, Ramsey & Russell, P.C. P.O. Box 309 Claremore, OK 74018 918-343-4100 918-343-4900 fax mramsey@soonerlaw.com The information contained in this electronic mail transmission (including any accompanying attachments) is intended solely for its authorized recipient(s), and may be confidential and/or legally privileged. If you are not an intended recipient, or responsible for delivering some or all of this transmission to an intended recipient, you have received this transmission in error and are hereby notified that you are strictly prohibited from reading, copying, printing, distributing or disclosing any of the information contained in it. In that event, please contact us immediately by telephone (918) 343-4100 or by electronic mail atpostmaster@soonerlaw.com and delete the original and all copies of this transmission (including any attachments) without reading or saving in any manner. Thank you.   From: Oama <oama-bounces@lists.imla.org>On Behalf Of Ray Vincent Sent: Monday, March 9, 2020 6:59 PM To: Toni Capra <capralawfirm@gmail.com>; Beech, Johnny <jbeech@spencerfane.com>; Michael Beason <mbeason@altusok.gov>;oama@lists.imla.org Subject: Re: [Oama] Executive Session Items   Is the city attorney an employee?       Sent from my Sprint Samsung Galaxy Note9.       -------- Original message -------- From: Toni Capra <capralawfirm@gmail.com> Date: 3/6/20 3:20 PM (GMT-06:00) To: "Beech, Johnny" <jbeech@spencerfane.com>, Michael Beason <mbeason@altusok.gov>,oama@lists.imla.org Subject: Re: [Oama] Executive Session Items   We do it that way all the time.  Never have and any issues with it.  As long as the persons are adequately identified in the agenda item you should be fine.   Sent from Mail for Windows 10   From: Beech, Johnny Sent: Monday, March 2, 2020 10:40 AM To: Michael Beason; oama@lists.imla.org Subject: Re: [Oama] Executive Session Items   I would separate them just to be safe from open meetings act scrutiny.   | Johnny Beech  Attorney Spencer Fane LLP | | | | 9400 N. Broadway Ext, Suite 600 | Oklahoma City, OK 73114 O 405.844.9900 jbeech@spencerfane.com |spencerfane.com |     From: Oama <oama-bounces@lists.imla.org>On Behalf Of Michael Beason Sent: Monday, March 2, 2020 9:32 AM To: oama@lists.imla.org Subject: [EXTERNAL] [Oama] Executive Session Items   [Warning] This E-mail came from an External sender. Please do not open links or attachments unless you are sure it is trusted. Quick Question.  I have two (2) executive session items … (1) the hiring, employment and contract terms of the City Manager, (2) the hiring, employment and contract terms of the City Attorney.  Each item is listed separately on the agenda under executive session.  However, the items are combined on the agenda item to vote to go into executive session for both matters.   Any issues that anyone sees?   Michael T. Beason, OBA #18535 City Attorney – Altus 509 S. Main St. Altus, Oklahoma 73521     -- Oama mailing list Oama@lists.imla.org http://lists.imla.org/mailman/listinfo/oama_lists.imla.org