Absences from Meetings
Has anyone had to confront the question of what constitutes an absence from
a meeting? If a Councilmember attends *any part *of a meeting (say they
walked in during a vote, voted and had their vote recorded in the minutes
and walked out) would that mean they were not absent from the meeting? My
conclusion is that, if they are present for a portion of the meeting, then
they were not legally absent from the meeting for the purpose of the
statutory or Charter provision that deals with absences creating a vacancy.
That is especially true if their presence is noted in the minutes (e.g. by
way of a recorded vote they cast).
To conclude otherwise would create a dangerous precedent. How long is "long
enough" in terms of being present. Is it that you have to be there from the
moment the meeting officially starts to the moment it is adjourned? If that
were the case, then anyone who showed up late, left a little early, or even
stepped out to take a phone call or use the restroom would be considered to
have been absent from the meeting. The statute refers to being absent from
meetings, not being absent from portions of meetings. But I've not found
any cases that have addressed this point.
As a final question/note: does anyone think that a Council could establish
rules but resolution or ordinance that would define what it meant to be
absent (e.g. a person who fails to attend/vote/participate in a majority of
the recorded votes during a meeting)? I don't know that they could since
the rule on absences creating a vacancy is created by statute (or City
Charter) and I don't know that a Council could take an action that
modified what the statute meant (i.e. what being absent means has to mean
the same thing in all cities and towns, and should not be different in one
City than another). But I would be curious to get the group's feedback.
Matt
I agree that any attendance is sufficient. As a matter of proof, it would be better if the member is shown in the Minutes as present in some way (e.g., a recorded vote). If an attempt were made to remove a member for excessive absences under 11 O.S. 8-108, due process would require notice and hearing and a finding of sufficient absences before the office could be declared vacant and filled. See, Nesbitt v. Apple, 1995 OK 20, 891 P.2d 1234, 1240.
I don’t think 11 O.S. 8-108 can be amended or qualified by a City or Town. I suppose they could adopt an Ordinance establishing procedures for notice and hearing for declaring a vacancy, but they can’t qualify the statute.
Good luck!
From: Oama oama-bounces@lists.imla.org On Behalf Of Matt Love
Sent: Friday, February 5, 2021 5:52 PM
To: OAMA luistserv (OAMA@lists.imla.org) oama@lists.imla.org
Subject: [Oama] Absences from Meetings
Notice: This email is from an external source. Do not open attachments or click on links from unknown senders or unexpected e-mail.
Has anyone had to confront the question of what constitutes an absence from a meeting? If a Councilmember attends any part of a meeting (say they walked in during a vote, voted and had their vote recorded in the minutes and walked out) would that mean they were not absent from the meeting? My conclusion is that, if they are present for a portion of the meeting, then they were not legally absent from the meeting for the purpose of the statutory or Charter provision that deals with absences creating a vacancy. That is especially true if their presence is noted in the minutes (e.g. by way of a recorded vote they cast).
To conclude otherwise would create a dangerous precedent. How long is "long enough" in terms of being present. Is it that you have to be there from the moment the meeting officially starts to the moment it is adjourned? If that were the case, then anyone who showed up late, left a little early, or even stepped out to take a phone call or use the restroom would be considered to have been absent from the meeting. The statute refers to being absent from meetings, not being absent from portions of meetings. But I've not found any cases that have addressed this point.
As a final question/note: does anyone think that a Council could establish rules but resolution or ordinance that would define what it meant to be absent (e.g. a person who fails to attend/vote/participate in a majority of the recorded votes during a meeting)? I don't know that they could since the rule on absences creating a vacancy is created by statute (or City Charter) and I don't know that a Council could take an action that modified what the statute meant (i.e. what being absent means has to mean the same thing in all cities and towns, and should not be different in one City than another). But I would be curious to get the group's feedback.
Matt
Any opinion on whether the governing body could reappoint the person that was removed for excessive absences?
From: Oama [mailto:oama-bounces@lists.imla.org] On Behalf Of Mark Ramsey
Sent: Saturday, February 6, 2021 6:42 PM
To: Matt Love matt.love@gmail.com; OAMA luistserv (OAMA@lists.imla.org) oama@lists.imla.org
Subject: Re: [Oama] Absences from Meetings
I agree that any attendance is sufficient. As a matter of proof, it would be better if the member is shown in the Minutes as present in some way (e.g., a recorded vote). If an attempt were made to remove a member for excessive absences under 11 O.S. 8-108, due process would require notice and hearing and a finding of sufficient absences before the office could be declared vacant and filled. See, Nesbitt v. Apple, 1995 OK 20, 891 P.2d 1234, 1240.
I don’t think 11 O.S. 8-108 can be amended or qualified by a City or Town. I suppose they could adopt an Ordinance establishing procedures for notice and hearing for declaring a vacancy, but they can’t qualify the statute.
Good luck!
From: Oama <oama-bounces@lists.imla.orgmailto:oama-bounces@lists.imla.org> On Behalf Of Matt Love
Sent: Friday, February 5, 2021 5:52 PM
To: OAMA luistserv (OAMA@lists.imla.orgmailto:OAMA@lists.imla.org) <oama@lists.imla.orgmailto:oama@lists.imla.org>
Subject: [Oama] Absences from Meetings
Notice: This email is from an external source. Do not open attachments or click on links from unknown senders or unexpected e-mail.
Has anyone had to confront the question of what constitutes an absence from a meeting? If a Councilmember attends any part of a meeting (say they walked in during a vote, voted and had their vote recorded in the minutes and walked out) would that mean they were not absent from the meeting? My conclusion is that, if they are present for a portion of the meeting, then they were not legally absent from the meeting for the purpose of the statutory or Charter provision that deals with absences creating a vacancy. That is especially true if their presence is noted in the minutes (e.g. by way of a recorded vote they cast).
To conclude otherwise would create a dangerous precedent. How long is "long enough" in terms of being present. Is it that you have to be there from the moment the meeting officially starts to the moment it is adjourned? If that were the case, then anyone who showed up late, left a little early, or even stepped out to take a phone call or use the restroom would be considered to have been absent from the meeting. The statute refers to being absent from meetings, not being absent from portions of meetings. But I've not found any cases that have addressed this point.
As a final question/note: does anyone think that a Council could establish rules but resolution or ordinance that would define what it meant to be absent (e.g. a person who fails to attend/vote/participate in a majority of the recorded votes during a meeting)? I don't know that they could since the rule on absences creating a vacancy is created by statute (or City Charter) and I don't know that a Council could take an action that modified what the statute meant (i.e. what being absent means has to mean the same thing in all cities and towns, and should not be different in one City than another). But I would be curious to get the group's feedback.
Matt
I believe they can
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.commailto:rthompson@cheekfalcone.com
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From: Oama oama-bounces@lists.imla.org On Behalf Of Frank Stout
Sent: Thursday, February 11, 2021 9:40 AM
To: 'Mark Ramsey' MRamsey@soonerlaw.com; 'Matt Love' matt.love@gmail.com; 'OAMA luistserv (OAMA@lists.imla.org)' oama@lists.imla.org
Subject: Re: [Oama] Absences from Meetings
Any opinion on whether the governing body could reappoint the person that was removed for excessive absences?
From: Oama [mailto:oama-bounces@lists.imla.org] On Behalf Of Mark Ramsey
Sent: Saturday, February 6, 2021 6:42 PM
To: Matt Love <matt.love@gmail.commailto:matt.love@gmail.com>; OAMA luistserv (OAMA@lists.imla.orgmailto:OAMA@lists.imla.org) <oama@lists.imla.orgmailto:oama@lists.imla.org>
Subject: Re: [Oama] Absences from Meetings
I agree that any attendance is sufficient. As a matter of proof, it would be better if the member is shown in the Minutes as present in some way (e.g., a recorded vote). If an attempt were made to remove a member for excessive absences under 11 O.S. 8-108, due process would require notice and hearing and a finding of sufficient absences before the office could be declared vacant and filled. See, Nesbitt v. Apple, 1995 OK 20, 891 P.2d 1234, 1240.
I don’t think 11 O.S. 8-108 can be amended or qualified by a City or Town. I suppose they could adopt an Ordinance establishing procedures for notice and hearing for declaring a vacancy, but they can’t qualify the statute.
Good luck!
From: Oama <oama-bounces@lists.imla.orgmailto:oama-bounces@lists.imla.org> On Behalf Of Matt Love
Sent: Friday, February 5, 2021 5:52 PM
To: OAMA luistserv (OAMA@lists.imla.orgmailto:OAMA@lists.imla.org) <oama@lists.imla.orgmailto:oama@lists.imla.org>
Subject: [Oama] Absences from Meetings
Notice: This email is from an external source. Do not open attachments or click on links from unknown senders or unexpected e-mail.
Has anyone had to confront the question of what constitutes an absence from a meeting? If a Councilmember attends any part of a meeting (say they walked in during a vote, voted and had their vote recorded in the minutes and walked out) would that mean they were not absent from the meeting? My conclusion is that, if they are present for a portion of the meeting, then they were not legally absent from the meeting for the purpose of the statutory or Charter provision that deals with absences creating a vacancy. That is especially true if their presence is noted in the minutes (e.g. by way of a recorded vote they cast).
To conclude otherwise would create a dangerous precedent. How long is "long enough" in terms of being present. Is it that you have to be there from the moment the meeting officially starts to the moment it is adjourned? If that were the case, then anyone who showed up late, left a little early, or even stepped out to take a phone call or use the restroom would be considered to have been absent from the meeting. The statute refers to being absent from meetings, not being absent from portions of meetings. But I've not found any cases that have addressed this point.
As a final question/note: does anyone think that a Council could establish rules but resolution or ordinance that would define what it meant to be absent (e.g. a person who fails to attend/vote/participate in a majority of the recorded votes during a meeting)? I don't know that they could since the rule on absences creating a vacancy is created by statute (or City Charter) and I don't know that a Council could take an action that modified what the statute meant (i.e. what being absent means has to mean the same thing in all cities and towns, and should not be different in one City than another). But I would be curious to get the group's feedback.
Matt
The City of Tishomingo recently dealt with this issue. A councilmember was absent from more than one-half of all meetings in a four month consecutive period. There was some question as to one of the absences as the member had attempted to participate remotely but could not get the technology to work. The minutes reflected her as absent and she never participated in any vote. I had the Council make a determination of the absences that led to removal, and provided the individual the opportunity to address the remaining Councilmembers, as required in Nesbitt.
Based on my research and conversations with much more experienced municipal attorneys, there was nothing to prevent the appointment of the individual who created the vacancy. Indeed, the Tishomingo Council tried to do just that, but the Motion failed 2-2.
Thanks,
Krystina E. Phillips
Indian & Environmental Law Group, PLLC
117 S. Ash Street
Ada, OK 74820
krystina@iaelaw.com
(580) 453-7051
(918) 948-6190 (fax)
NOTICE: This email (including attachments) is confidential and may be legally privileged. If you are not the intended recipient, you are hereby notified that any retention, dissemination, distribution, or copying of this communication is strictly prohibited. Please reply to the sender if you have received the message in error, then delete it.
From: Oama oama-bounces@lists.imla.org On Behalf Of Frank Stout
Sent: Thursday, February 11, 2021 9:40 AM
To: 'Mark Ramsey' MRamsey@soonerlaw.com; 'Matt Love' matt.love@gmail.com; 'OAMA luistserv (OAMA@lists.imla.org)' oama@lists.imla.org
Subject: Re: [Oama] Absences from Meetings
Any opinion on whether the governing body could reappoint the person that was removed for excessive absences?
From: Oama [mailto:oama-bounces@lists.imla.org] On Behalf Of Mark Ramsey
Sent: Saturday, February 6, 2021 6:42 PM
To: Matt Love <matt.love@gmail.commailto:matt.love@gmail.com>; OAMA luistserv (OAMA@lists.imla.orgmailto:OAMA@lists.imla.org) <oama@lists.imla.orgmailto:oama@lists.imla.org>
Subject: Re: [Oama] Absences from Meetings
I agree that any attendance is sufficient. As a matter of proof, it would be better if the member is shown in the Minutes as present in some way (e.g., a recorded vote). If an attempt were made to remove a member for excessive absences under 11 O.S. 8-108, due process would require notice and hearing and a finding of sufficient absences before the office could be declared vacant and filled. See, Nesbitt v. Apple, 1995 OK 20, 891 P.2d 1234, 1240.
I don’t think 11 O.S. 8-108 can be amended or qualified by a City or Town. I suppose they could adopt an Ordinance establishing procedures for notice and hearing for declaring a vacancy, but they can’t qualify the statute.
Good luck!
From: Oama <oama-bounces@lists.imla.orgmailto:oama-bounces@lists.imla.org> On Behalf Of Matt Love
Sent: Friday, February 5, 2021 5:52 PM
To: OAMA luistserv (OAMA@lists.imla.orgmailto:OAMA@lists.imla.org) <oama@lists.imla.orgmailto:oama@lists.imla.org>
Subject: [Oama] Absences from Meetings
Notice: This email is from an external source. Do not open attachments or click on links from unknown senders or unexpected e-mail.
Has anyone had to confront the question of what constitutes an absence from a meeting? If a Councilmember attends any part of a meeting (say they walked in during a vote, voted and had their vote recorded in the minutes and walked out) would that mean they were not absent from the meeting? My conclusion is that, if they are present for a portion of the meeting, then they were not legally absent from the meeting for the purpose of the statutory or Charter provision that deals with absences creating a vacancy. That is especially true if their presence is noted in the minutes (e.g. by way of a recorded vote they cast).
To conclude otherwise would create a dangerous precedent. How long is "long enough" in terms of being present. Is it that you have to be there from the moment the meeting officially starts to the moment it is adjourned? If that were the case, then anyone who showed up late, left a little early, or even stepped out to take a phone call or use the restroom would be considered to have been absent from the meeting. The statute refers to being absent from meetings, not being absent from portions of meetings. But I've not found any cases that have addressed this point.
As a final question/note: does anyone think that a Council could establish rules but resolution or ordinance that would define what it meant to be absent (e.g. a person who fails to attend/vote/participate in a majority of the recorded votes during a meeting)? I don't know that they could since the rule on absences creating a vacancy is created by statute (or City Charter) and I don't know that a Council could take an action that modified what the statute meant (i.e. what being absent means has to mean the same thing in all cities and towns, and should not be different in one City than another). But I would be curious to get the group's feedback.
Matt
To be eligible for appointment, the person need only meet the
qualifications to hold the office. Absences don't go to the
qualification to hold office (it's just a basis to remove an otherwise
qualified person). So if the person vacates office by resignation or
removal they would be eligible for appointment back to their position.
I had this exact issue come up. In my case, the Councilman tendered a
resignation when he found out about his absences exceeding the threshold
and the Council appointed him back to his position at the next meeting
(with a bit of finger wagging about his prior absences).
On Thu, Feb 11, 2021 at 9:48 AM Krystina Phillips krystina@iaelaw.com
wrote:
The City of Tishomingo recently dealt with this issue. A councilmember
was absent from more than one-half of all meetings in a four month
consecutive period. There was some question as to one of the absences as
the member had attempted to participate remotely but could not get the
technology to work. The minutes reflected her as absent and she never
participated in any vote. I had the Council make a determination of the
absences that led to removal, and provided the individual the opportunity
to address the remaining Councilmembers, as required in Nesbitt.
Based on my research and conversations with much more experienced
municipal attorneys, there was nothing to prevent the appointment of the
individual who created the vacancy. Indeed, the Tishomingo Council tried
to do just that, but the Motion failed 2-2.
Thanks,
Krystina E. Phillips
Indian & Environmental Law Group, PLLC
117 S. Ash Street
Ada, OK 74820
(580) 453-7051
(918) 948-6190 (fax)
NOTICE: This email (including attachments) is confidential and may be
legally privileged. If you are not the intended recipient, you are hereby
notified that any retention, dissemination, distribution, or copying of
this communication is strictly prohibited. Please reply to the sender if
you have received the message in error, then delete it.
From: Oama oama-bounces@lists.imla.org *On Behalf Of *Frank Stout
Sent: Thursday, February 11, 2021 9:40 AM
To: 'Mark Ramsey' MRamsey@soonerlaw.com; 'Matt Love' <
matt.love@gmail.com>; 'OAMA luistserv (OAMA@lists.imla.org)' <
oama@lists.imla.org>
Subject: Re: [Oama] Absences from Meetings
Any opinion on whether the governing body could reappoint the person that
was removed for excessive absences?
From: Oama [mailto:oama-bounces@lists.imla.org
oama-bounces@lists.imla.org] *On Behalf Of *Mark Ramsey
Sent: Saturday, February 6, 2021 6:42 PM
To: Matt Love matt.love@gmail.com; OAMA luistserv (OAMA@lists.imla.org)
oama@lists.imla.org
Subject: Re: [Oama] Absences from Meetings
I agree that any attendance is sufficient. As a matter of proof, it would
be better if the member is shown in the Minutes as present in some way
(e.g., a recorded vote). If an attempt were made to remove a member for
excessive absences under 11 O.S. 8-108, due process would require notice
and hearing and a finding of sufficient absences before the office could be
declared vacant and filled. See, Nesbitt v. Apple, 1995 OK 20, 891 P.2d
1234, 1240.
I don’t think 11 O.S. 8-108 can be amended or qualified by a City or
Town. I suppose they could adopt an Ordinance establishing procedures for
notice and hearing for declaring a vacancy, but they can’t qualify the
statute.
Good luck!
From: Oama oama-bounces@lists.imla.org *On Behalf Of *Matt Love
Sent: Friday, February 5, 2021 5:52 PM
To: OAMA luistserv (OAMA@lists.imla.org) oama@lists.imla.org
Subject: [Oama] Absences from Meetings
Notice: This email is from an external source. Do not open attachments or
click on links from unknown senders or unexpected e-mail.
Has anyone had to confront the question of what constitutes an absence
from a meeting? If a Councilmember attends *any part *of a meeting (say
they walked in during a vote, voted and had their vote recorded in the
minutes and walked out) would that mean they were not absent from the
meeting? My conclusion is that, if they are present for a portion of the
meeting, then they were not legally absent from the meeting for the purpose
of the statutory or Charter provision that deals with absences creating a
vacancy. That is especially true if their presence is noted in the minutes
(e.g. by way of a recorded vote they cast).
To conclude otherwise would create a dangerous precedent. How long is
"long enough" in terms of being present. Is it that you have to be there
from the moment the meeting officially starts to the moment it is
adjourned? If that were the case, then anyone who showed up late, left a
little early, or even stepped out to take a phone call or use the restroom
would be considered to have been absent from the meeting. The statute
refers to being absent from meetings, not being absent from portions of
meetings. But I've not found any cases that have addressed this point.
As a final question/note: does anyone think that a Council could establish
rules but resolution or ordinance that would define what it meant to be
absent (e.g. a person who fails to attend/vote/participate in a majority of
the recorded votes during a meeting)? I don't know that they could since
the rule on absences creating a vacancy is created by statute (or City
Charter) and I don't know that a Council could take an action that
modified what the statute meant (i.e. what being absent means has to mean
the same thing in all cities and towns, and should not be different in one
City than another). But I would be curious to get the group's feedback.
Matt
I have had a similar situation and agree with Ms Phillips. I know of nothing that could prevent them from voting to appoint the person who vacated the seat.
Sent from my iPhone
On Feb 11, 2021, at 12:02 PM, Matt Love matt.love@gmail.com wrote:
To be eligible for appointment, the person need only meet the qualifications to hold the office. Absences don't go to the qualification to hold office (it's just a basis to remove an otherwise qualified person). So if the person vacates office by resignation or removal they would be eligible for appointment back to their position.
I had this exact issue come up. In my case, the Councilman tendered a resignation when he found out about his absences exceeding the threshold and the Council appointed him back to his position at the next meeting (with a bit of finger wagging about his prior absences).
On Thu, Feb 11, 2021 at 9:48 AM Krystina Phillips <krystina@iaelaw.commailto:krystina@iaelaw.com> wrote:
The City of Tishomingo recently dealt with this issue. A councilmember was absent from more than one-half of all meetings in a four month consecutive period. There was some question as to one of the absences as the member had attempted to participate remotely but could not get the technology to work. The minutes reflected her as absent and she never participated in any vote. I had the Council make a determination of the absences that led to removal, and provided the individual the opportunity to address the remaining Councilmembers, as required in Nesbitt.
Based on my research and conversations with much more experienced municipal attorneys, there was nothing to prevent the appointment of the individual who created the vacancy. Indeed, the Tishomingo Council tried to do just that, but the Motion failed 2-2.
Thanks,
Krystina E. Phillips
Indian & Environmental Law Group, PLLC
117 S. Ash Street
Ada, OK 74820
krystina@iaelaw.commailto:krystina@iaelaw.com
(580) 453-7051
(918) 948-6190 (fax)
NOTICE: This email (including attachments) is confidential and may be legally privileged. If you are not the intended recipient, you are hereby notified that any retention, dissemination, distribution, or copying of this communication is strictly prohibited. Please reply to the sender if you have received the message in error, then delete it.
From: Oama <oama-bounces@lists.imla.orgmailto:oama-bounces@lists.imla.org> On Behalf Of Frank Stout
Sent: Thursday, February 11, 2021 9:40 AM
To: 'Mark Ramsey' <MRamsey@soonerlaw.commailto:MRamsey@soonerlaw.com>; 'Matt Love' <matt.love@gmail.commailto:matt.love@gmail.com>; 'OAMA luistserv (OAMA@lists.imla.orgmailto:OAMA@lists.imla.org)' <oama@lists.imla.orgmailto:oama@lists.imla.org>
Subject: Re: [Oama] Absences from Meetings
Any opinion on whether the governing body could reappoint the person that was removed for excessive absences?
From: Oama [mailto:oama-bounces@lists.imla.org] On Behalf Of Mark Ramsey
Sent: Saturday, February 6, 2021 6:42 PM
To: Matt Love <matt.love@gmail.commailto:matt.love@gmail.com>; OAMA luistserv (OAMA@lists.imla.orgmailto:OAMA@lists.imla.org) <oama@lists.imla.orgmailto:oama@lists.imla.org>
Subject: Re: [Oama] Absences from Meetings
I agree that any attendance is sufficient. As a matter of proof, it would be better if the member is shown in the Minutes as present in some way (e.g., a recorded vote). If an attempt were made to remove a member for excessive absences under 11 O.S. 8-108, due process would require notice and hearing and a finding of sufficient absences before the office could be declared vacant and filled. See, Nesbitt v. Apple, 1995 OK 20, 891 P.2d 1234, 1240.
I don’t think 11 O.S. 8-108 can be amended or qualified by a City or Town. I suppose they could adopt an Ordinance establishing procedures for notice and hearing for declaring a vacancy, but they can’t qualify the statute.
Good luck!
From: Oama <oama-bounces@lists.imla.orgmailto:oama-bounces@lists.imla.org> On Behalf Of Matt Love
Sent: Friday, February 5, 2021 5:52 PM
To: OAMA luistserv (OAMA@lists.imla.orgmailto:OAMA@lists.imla.org) <oama@lists.imla.orgmailto:oama@lists.imla.org>
Subject: [Oama] Absences from Meetings
Notice: This email is from an external source. Do not open attachments or click on links from unknown senders or unexpected e-mail.
Has anyone had to confront the question of what constitutes an absence from a meeting? If a Councilmember attends any part of a meeting (say they walked in during a vote, voted and had their vote recorded in the minutes and walked out) would that mean they were not absent from the meeting? My conclusion is that, if they are present for a portion of the meeting, then they were not legally absent from the meeting for the purpose of the statutory or Charter provision that deals with absences creating a vacancy. That is especially true if their presence is noted in the minutes (e.g. by way of a recorded vote they cast).
To conclude otherwise would create a dangerous precedent. How long is "long enough" in terms of being present. Is it that you have to be there from the moment the meeting officially starts to the moment it is adjourned? If that were the case, then anyone who showed up late, left a little early, or even stepped out to take a phone call or use the restroom would be considered to have been absent from the meeting. The statute refers to being absent from meetings, not being absent from portions of meetings. But I've not found any cases that have addressed this point.
As a final question/note: does anyone think that a Council could establish rules but resolution or ordinance that would define what it meant to be absent (e.g. a person who fails to attend/vote/participate in a majority of the recorded votes during a meeting)? I don't know that they could since the rule on absences creating a vacancy is created by statute (or City Charter) and I don't know that a Council could take an action that modified what the statute meant (i.e. what being absent means has to mean the same thing in all cities and towns, and should not be different in one City than another). But I would be curious to get the group's feedback.
Matt
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