Has an anyone researched whether firefighters are considered "officers" under Art. X, Sec. 11 of the Okla. Const. and the dual office holding prohibitions? Thanks! Teresa Nowlin | City Attorney City of Jenks 211 North Elm | P.O Box 2007 | Jenks, OK 74037 918-299-5883 Office

I don’t believe so. In State v. Sheridan, 2003 OK 80, 84 P.3d 710, the high court determined an assistant district attorney was not an "officer" because the position's duties are defined by the district attorney and can be changed at the will of the district attorney. While the Fire Chief would unquestionably be an officer due to the position's control over the Fire Department, the individual firefighters likely do not have individualized duties imposed by law. Instead, the individual firefighters are, in the words of the court, lessor functionaries to the Fire Chief. This contrasts with an individual police officer. Each individual police officer has the right to arrest by virtue of CLEET certification. That power is not changeable at the direction of the Police Chief even though the Police Chief can direct the manner in which that power is effectuated. The distinction is from where that power flows: for the police officer it's their own whereas the firefighter it is delegated from, and removable by, the Fire Chief. So for your rank-and-file firefighters (excepting any CLEET certified fire marshal or arson investigator) are likely not officers. JTH John Tyler Hammons Hammons Hamby & Price, PLLC (918) 683-0309 Sent from my iPhone ________________________________ From: Teresa Nowlin via Oama <oama@lists.imla.org> Sent: Tuesday, November 21, 2023 10:14:36 AM To: oama@lists.imla.org <oama@lists.imla.org> Subject: [Oama] Is firefighter an "officer"? Has an anyone researched whether firefighters are considered “officers” under Art. X, Sec. 11 of the Okla. Const. and the dual office holding prohibitions? Thanks! Teresa Nowlin | City Attorney City of Jenks 211 North Elm | P.O Box 2007 | Jenks, OK 74037 918-299-5883 Office

A volunteer firefighter isn't an officer, according to a 1977 AG opinion. It is, therefore, the opinion of the Attorney General that your questions be answered as follows: Service by a City Councilman or School Board member as a volunteer fireman does not constitute a dual-office holding under 51 O.S. 1971, § 6 in that a volunteer fireman is not an officer within the meaning of said section. Service by a City Councilman as a volunteer fireman is not per se in conflict with the provisions of 62 O.S. 1971, § 371. Okla. Att'y Gen. Op. No. 77-188 (July 15, 1977) Kim Spady From: Teresa Nowlin via Oama <oama@lists.imla.org> Sent: Tuesday, November 21, 2023 10:15 AM To: oama@lists.imla.org Subject: [Oama] Is firefighter an "officer"? Has an anyone researched whether firefighters are considered "officers" under Art. X, Sec. 11 of the Okla. Const. and the dual office holding prohibitions? Thanks! Teresa Nowlin | City Attorney City of Jenks 211 North Elm | P.O Box 2007 | Jenks, OK 74037 918-299-5883 Office

Running the position through the 3 part test for public officers, I think the position arguably meets 2 of the 3 parts of the test. It's certainly a position created by law. And arguably it has duties imposed by law (not necessarily in Art. XXIX in Title 11, but one could argue that the fire pension statutory definition in 49-100.1(6) establishes the essential functions of the position - fire suppression, revention and life safety duties"). But does a firefighter exercise some portion of the sovereign power of the City government? I find no authority addressing that question. To me, it's a stretch to say that a firefighter can satisfy this final prong. But I'm not sure I'd say it's purely obvious that they do not. In terms of authority that is out there, it's a bit scant. Kim mentioned 1977 OK AG 188 related to volunteer firefighters. But that opinion offers no legal analysis on the point, as it merely makes that statement citing a prior, 1946 opinion which apparently provided the legal analysis (but is not available online as far as I can tell). 1984 OK AG 102 concluded that the position of Fire Chief at a volunteer fire department was a public office. The analysis could be a bit more robust, in my opinion. But the opinion is out there, and was reaffirmed / cited with approval in 1997 OK AG 55. The only other authority that I could find is actually not authority directly addressing this issue (but that could be the point). For example, in 1980 OK AG 172, one question presented was whether it was legal for "a municipal employee, i.e., a policeman or fireman" to serve in the State legislature while employed by the municipality. The AG concluded that a police officer and a State legislator were both public offices and, thus, a Municipal cop could not also serve in the Legislature. But as to "the more general category of municipal employee, including such categories as fire fighters," the AG declined to issue a opinion because the issue would have to be addressed case by case and was too fact specific. So at a minimum one could read this as concluding that the AG didn't think that all firefighters were public officers (as compared to cops). The there's *Sallee v. City of Oklahoma City*, 2011 OK CIV APP 5, 247 P.3d 750, where the issue was whether a City firefighter was prohibited from continuing his employment with the City *under the City Charter* when he took office on a school board. The case focused on the Charter provision, but it seems noteworthy to me that the case could very easily have been resolved by finding dual office holding under 51 O.S. 6 (if, in fact, the firefighter position was a public office). I actually found a brief that Kenny and Diane filed in the appeal on Westlaw, and in the lone footnote they took the position that Section 6 didn't apply because the position of firefighter was not a public office. So that would likely be why the Court didn't address the issue (because neither party was raising it). I think the test is going to be the same for 51 O.S. 6 and Art. X, Sec. 11 - it'll be the 3 part public office(r) test. One could read the 1980 AG opinion as saying that there's not a definitive answer on firefighters and that you'd have to look to the duties assigned by law (including Charter and Ordinances) to your particular firefighters. But personally, I have a hard time concluding that the third prong of the test (exercise of some portion of the sovereign authority) could be met. Matt On Tue, Nov 21, 2023 at 11:13 AM Kimberlee Spady via Oama < oama@lists.imla.org> wrote: > A volunteer firefighter isn’t an officer, according to a 1977 AG opinion. > > > > It is, therefore, the opinion of the Attorney General that your questions > be answered as follows: Service by a City Councilman or School Board member > as a volunteer fireman does not constitute a dual-office holding under 51 > O.S. 1971, § 6 in that a volunteer fireman is not an officer within the > meaning of said section. Service by a City Councilman as a volunteer > fireman is not *per se* in conflict with the provisions of 62 O.S. 1971, > § 371. > > > > Okla. Att'y Gen. Op. No. 77-188 (July 15, 1977) > > > > > > Kim Spady > > > > > > *From:* Teresa Nowlin via Oama <oama@lists.imla.org> > *Sent:* Tuesday, November 21, 2023 10:15 AM > *To:* oama@lists.imla.org > *Subject:* [Oama] Is firefighter an "officer"? > > > > Has an anyone researched whether firefighters are considered “officers” > under Art. X, Sec. 11 of the Okla. Const. and the dual office holding > prohibitions? Thanks! > > > > *Teresa Nowlin *| City Attorney > > City of Jenks > > 211 North Elm | P.O Box 2007 | Jenks, OK 74037 > > 918-299-5883 Office > > > -- > Oama mailing list -- oama@lists.imla.org > To unsubscribe send an email to oama-leave@lists.imla.org >