Municipality cleaning out bar ditches within municipal limits.  The
municipal employees were repairing private property in the area with the
dirt (placing it on the property, leveling it out).  A governing body member
called & asked if it was permissible for the municipal workers to use
municipal equipment to do work on private property and I said no, as a
general rule.

Standard practice is for the employees to put the dirt that's removed from
the bar ditches in the municipal yard.  It's used by the municipality as
needed but is also available for the taking by any citizens who need it.

Now I'm told that the governing body member who contacted me initially is
taking the dirt from the yard and selling it in the course of the member's
private business.

This is not specifically prohibited by 11 OS 8-113, but it sure doesn't seem
right to me.

I'm going to advise that they put up signage that the dirt is for personal
use only and may not be taken for resale.

Any other thoughts/suggestions would be appreciated.

Thanks

Kim Spady

Sounds like a solid plan, although it may not be legally required.  Cities do give away mulch, compose and other items from their yard to save the expense of hauling it off.  Also, governing board members take an oath not to receive compensation for their service.  Granted, if the dirt is free for the taking by anyone then, legally, he/she is not getting that benefit as result of their service or position as a governing board member.  However, it looks bad and creates at least an appearance of impropriety.  Also, if the city knows that the dirt is being resold, the City may want to consider either limiting the dirt for personal use only or selling the dirt itself.  Another source of income?  Too bad one person abusing the process may cause others to loose the benefit.

Jonathan E. Miller
City Attorney
City of Mustang
1885 Piedmont Road N., Suite B
P.O. Box 546
Piedmont, Oklahoma  73078
Telephone: (405) 883-6266
Facsimile: (405) 883-6155

This message is sent by a lawyer and may contain information that is privileged or confidential.  If you received this transmission in error, please notify the sender by reply e-mail and delete this message and any attachments.  This e-mail is intended for the addressee(s) only, and may not be distributed to any other person without written consent of the sender.  Circular 230 disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including attachments) is not intended or written to be used and cannot be used for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

From: Oama oama-bounces@lists.imla.org On Behalf Of Kimberlee Spady
Sent: Wednesday, August 19, 2020 2:04 PM
To: oama@lists.imla.org
Subject: [Oama] Dealing with Dirt

Municipality cleaning out bar ditches within municipal limits.  The municipal employees were repairing private property in the area with the dirt (placing it on the property, leveling it out).  A governing body member called & asked if it was permissible for the municipal workers to use municipal equipment to do work on private property and I said no, as a general rule.

Standard practice is for the employees to put the dirt that's removed from the bar ditches in the municipal yard.  It's used by the municipality as needed but is also available for the taking by any citizens who need it.

Now I'm told that the governing body member who contacted me initially is taking the dirt from the yard and selling it in the course of the member's private business.

This is not specifically prohibited by 11 OS 8-113, but it sure doesn't seem right to me.

I'm going to advise that they put up signage that the dirt is for personal use only and may not be taken for resale.

Any other thoughts/suggestions would be appreciated.

Thanks
Kim Spady

I agree with Jon.  I have also heard of cities making compost free to citizens (showing water billing) for personal use, and then charging commercial entities some reasonable rate knowing the commercial entity will be using it for the benefit of their business or for resale.  Some of the calculus in determining the right approach for each individual city may involve the quantity of material that is available, whether the city has any use for it, whether it just needs to be hauled off, and the cost to the city of hauling it off.  Sometimes "free" to those who will haul it off, is more cost effective for the city than handling the material.  This may be a policy decision for a majority of Council, as I am not sure I see a legal reason for limiting who the material is being made available to, other than the "appearance of impropriety".  Just offering another perspective.

Jeff Bryant

OMAG's COVID-19 Info Page: https://www.omag.org/covid19-faq

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 Jon Miller
Sent: Wednesday, August 19, 2020 2:27 PM
To: Kimberlee Spady Kim@spadylaw.com; oama@lists.imla.org
Subject: Re: [Oama] Dealing with Dirt

Sounds like a solid plan, although it may not be legally required.  Cities do give away mulch, compose and other items from their yard to save the expense of hauling it off.  Also, governing board members take an oath not to receive compensation for their service.  Granted, if the dirt is free for the taking by anyone then, legally, he/she is not getting that benefit as result of their service or position as a governing board member.  However, it looks bad and creates at least an appearance of impropriety.  Also, if the city knows that the dirt is being resold, the City may want to consider either limiting the dirt for personal use only or selling the dirt itself.  Another source of income?  Too bad one person abusing the process may cause others to loose the benefit.

Jonathan E. Miller
City Attorney
City of Mustang
1885 Piedmont Road N., Suite B
P.O. Box 546
Piedmont, Oklahoma  73078
Telephone: (405) 883-6266
Facsimile: (405) 883-6155

This message is sent by a lawyer and may contain information that is privileged or confidential.  If you received this transmission in error, please notify the sender by reply e-mail and delete this message and any attachments.  This e-mail is intended for the addressee(s) only, and may not be distributed to any other person without written consent of the sender.  Circular 230 disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including attachments) is not intended or written to be used and cannot be used for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

From: Oama <oama-bounces@lists.imla.orgmailto:oama-bounces@lists.imla.org> On Behalf Of Kimberlee Spady
Sent: Wednesday, August 19, 2020 2:04 PM
To: oama@lists.imla.orgmailto:oama@lists.imla.org
Subject: [Oama] Dealing with Dirt

Municipality cleaning out bar ditches within municipal limits.  The municipal employees were repairing private property in the area with the dirt (placing it on the property, leveling it out).  A governing body member called & asked if it was permissible for the municipal workers to use municipal equipment to do work on private property and I said no, as a general rule.

Standard practice is for the employees to put the dirt that's removed from the bar ditches in the municipal yard.  It's used by the municipality as needed but is also available for the taking by any citizens who need it.

Now I'm told that the governing body member who contacted me initially is taking the dirt from the yard and selling it in the course of the member's private business.

This is not specifically prohibited by 11 OS 8-113, but it sure doesn't seem right to me.

I'm going to advise that they put up signage that the dirt is for personal use only and may not be taken for resale.

Any other thoughts/suggestions would be appreciated.

Thanks
Kim Spady