Greetings!

I have a small town that uses the Town Meeting Act for its elections (11 O.S. §16-301, et seq.).  The election was held and new trustees were elected.  One of the candidates (trustee-elect) appears to be disqualified based on residency.  The new trustees have not been sworn.  How can this issue be raised?

11 O.S. §16-306(C) requires a candidate to be a registered voter at an address in the town for at least six (6) months prior to the date of the Town Meeting.  11 O.S. §8-101 requires a candidate to be a resident of the Town.

As I read the statutes, if the candidate was not qualified at the time of election, the candidate is not qualified to take office.

51 O.S. §8 provides that a vacancy exists upon failure to qualify and that the Town Board determines the fact of a vacancy.

In order to take up the matter, the Town Board can put an item on the agenda, but is this before or after the new members are sworn?

The Oklahoma Constitution, Article 23 §10 says incumbents continue in office until a successor is appointed or elected and qualified.  Does this mean the existing Town Board can decide the qualifications of the new board members?

Any help is appreciated!

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.commailto:apixley@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 at postmaster@soonerlaw.commailto:postmaster@soonerlaw.com and delete the original and all copies of this transmission (including any attachments) without reading or saving in any manner. Thank you.

Question Submitted by: The Honorable Johnnie C. Crutchfield, The Honorable Rick M. Littlefield, State Senator, District 14, State Senator, District 1
2001 OK AG 33
Decided: 07/16/2001
Oklahoma Attorney General Opinions

¶26 It is, therefore, the official Opinion of the Attorney General that:

1. A. If an incumbent member of a local board of education fails to satisfy the 15-hour continuing education requirement during any full term of office as required by 70 O.S. Supp.2000, § 5-110.1(A), that board member is ineligible to run for reelection. 70 O.S. Supp.2000, § 5-110.1(D).
   B. If an incumbent school board member who fails to satisfy the 15-hour continuing education requirement during any full term of office as required by 70 O.S. Supp.2000, § 5-110.1(A), nonetheless runs for reelection and his or her ability to run for reelection under 26 O.S. Supp. 1994, § 5-118 is not successfully challenged within the time for protest allowed by law, the member is eligible to hold the office if he or she is reelected.
2. If a reelected school board member who fails to satisfy the 15-hour continuing education requirement required by 70 O.S. Supp.2000, § 5-110.1(A) possesses a due and proper certificate of election to an office, the party is prima facie entitled to qualify and assume the duties of such office, and the Board cannot refuse to seat him or her.
3. Under 51 O.S. 1991, § 8, a local school board has a duty to make a factual determination whether an office is vacant because a member has a final conviction of a felony or an offense involving his or her official oath. If a board refuses to make such a determination, it can be forced to do so by a writ of mandamus. However, the board cannot declare vacant the ineligible incumbent's position without affording the office holder an opportunity for due process, which at a minimum includes notice and an opportunity to be heard. What would constitute due process in a particular situation constitutes a question of fact, beyond the scope of an Attorney General Opinion. 74 O.S. Supp. 2000, § 18b(A)(5).
4. Even if a re-elected incumbent school board member were to hold the office illegally, actions taken by the board would be valid.

This opinion seems to indicate that if no one challenged the candidate with the election board he or she is prima facie entitled to qualify and assume the duties of such office, and the Board cannot refuse to seat him or her.

Ray

From: Mark Ramsey
Sent: Monday, April 10, 2023 2:43 PM
To: OAMA luistserv (OAMA@lists.imla.org)
Subject: [Oama] Town Meeting Elections

Greetings!

I have a small town that uses the Town Meeting Act for its elections (11 O.S. §16-301, et seq.).  The election was held and new trustees were elected.  One of the candidates (trustee-elect) appears to be disqualified based on residency.  The new trustees have not been sworn.  How can this issue be raised?

11 O.S. §16-306(C) requires a candidate to be a registered voter at an address in the town for at least six (6) months prior to the date of the Town Meeting.  11 O.S. §8-101 requires a candidate to be a resident of the Town.

As I read the statutes, if the candidate was not qualified at the time of election, the candidate is not qualified to take office.

51 O.S. §8 provides that a vacancy exists upon failure to qualify and that the Town Board determines the fact of a vacancy.

In order to take up the matter, the Town Board can put an item on the agenda, but is this before or after the new members are sworn?

The Oklahoma Constitution, Article 23 §10 says incumbents continue in office until a successor is appointed or elected and qualified.  Does this mean the existing Town Board can decide the qualifications of the new board members?

Any help is appreciated!

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 at postmaster@soonerlaw.com and delete the original and all copies of this transmission (including any attachments) without reading or saving in any manner. Thank you.

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Thanks.  I'm not sure this answers the questions, but I appreciate it very much.  It is closer than most of what I have found.

The Town Meeting Act doesn't have a time for protest.  Nominations are made from the floor at the time of the election, so there is no practical way to verify residency at that time and, unless someone objects at the meeting, no way to challenge a candidacy.

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.commailto:apixley@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 at postmaster@soonerlaw.commailto:postmaster@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: rayvincent@coxinet.net rayvincent@coxinet.net
Sent: Monday, April 10, 2023 3:06 PM
To: Mark Ramsey MRamsey@soonerlaw.com; OAMA luistserv (OAMA@lists.imla.org) oama@lists.imla.org
Subject: Re: [Oama] Town Meeting Elections

Question Submitted by: The Honorable Johnnie C. Crutchfield, The Honorable Rick M. Littlefield, State Senator, District 14, State Senator, District 1
2001 OK AG 33
Decided: 07/16/2001
Oklahoma Attorney General Opinions

¶26 It is, therefore, the official Opinion of the Attorney General that:

1. A. If an incumbent member of a local board of education fails to satisfy the 15-hour continuing education requirement during any full term of office as required by 70 O.S. Supp.2000, § 5-110.1(A), that board member is ineligible to run for reelection. 70 O.S. Supp.2000, § 5-110.1(D).
   B. If an incumbent school board member who fails to satisfy the 15-hour continuing education requirement during any full term of office as required by 70 O.S. Supp.2000, § 5-110.1(A), nonetheless runs for reelection and his or her ability to run for reelection under 26 O.S. Supp. 1994, § 5-118 is not successfully challenged within the time for protest allowed by law, the member is eligible to hold the office if he or she is reelected.
2. If a reelected school board member who fails to satisfy the 15-hour continuing education requirement required by 70 O.S. Supp.2000, § 5-110.1(A) possesses a due and proper certificate of election to an office, the party is prima facie entitled to qualify and assume the duties of such office, and the Board cannot refuse to seat him or her.
3. Under 51 O.S. 1991, § 8, a local school board has a duty to make a factual determination whether an office is vacant because a member has a final conviction of a felony or an offense involving his or her official oath. If a board refuses to make such a determination, it can be forced to do so by a writ of mandamus. However, the board cannot declare vacant the ineligible incumbent's position without affording the office holder an opportunity for due process, which at a minimum includes notice and an opportunity to be heard. What would constitute due process in a particular situation constitutes a question of fact, beyond the scope of an Attorney General Opinion. 74 O.S. Supp. 2000, § 18b(A)(5).
4. Even if a re-elected incumbent school board member were to hold the office illegally, actions taken by the board would be valid.

This opinion seems to indicate that if no one challenged the candidate with the election board he or she is prima facie entitled to qualify and assume the duties of such office, and the Board cannot refuse to seat him or her.

Ray

From: Mark Ramsey
Sent: Monday, April 10, 2023 2:43 PM
To: OAMA luistserv (OAMA@lists.imla.orgmailto:OAMA@lists.imla.org)
Subject: [Oama] Town Meeting Elections

Greetings!

I have a small town that uses the Town Meeting Act for its elections (11 O.S. §16-301, et seq.).  The election was held and new trustees were elected.  One of the candidates (trustee-elect) appears to be disqualified based on residency.  The new trustees have not been sworn.  How can this issue be raised?

11 O.S. §16-306(C) requires a candidate to be a registered voter at an address in the town for at least six (6) months prior to the date of the Town Meeting.  11 O.S. §8-101 requires a candidate to be a resident of the Town.

As I read the statutes, if the candidate was not qualified at the time of election, the candidate is not qualified to take office.

51 O.S. §8 provides that a vacancy exists upon failure to qualify and that the Town Board determines the fact of a vacancy.

In order to take up the matter, the Town Board can put an item on the agenda, but is this before or after the new members are sworn?

The Oklahoma Constitution, Article 23 §10 says incumbents continue in office until a successor is appointed or elected and qualified.  Does this mean the existing Town Board can decide the qualifications of the new board members?

Any help is appreciated!

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.commailto: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 at postmaster@soonerlaw.commailto:postmaster@soonerlaw.com and delete the original and all copies of this transmission (including any attachments) without reading or saving in any manner. Thank you.

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If the existing board or the new board decides to take action, be sure to give due process.
Ray

From: Mark Ramsey
Sent: Monday, April 10, 2023 4:08 PM
To: rayvincent@coxinet.net ; OAMA luistserv (OAMA@lists.imla.org)
Subject: [Oama] Re: Town Meeting Elections

Thanks.  I’m not sure this answers the questions, but I appreciate it very much.  It is closer than most of what I have found.

The Town Meeting Act doesn’t have a time for protest.  Nominations are made from the floor at the time of the election, so there is no practical way to verify residency at that time and, unless someone objects at the meeting, no way to challenge a candidacy.

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 at postmaster@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: rayvincent@coxinet.net rayvincent@coxinet.net
Sent: Monday, April 10, 2023 3:06 PM
To: Mark Ramsey MRamsey@soonerlaw.com; OAMA luistserv (OAMA@lists.imla.org) oama@lists.imla.org
Subject: Re: [Oama] Town Meeting Elections

Question Submitted by: The Honorable Johnnie C. Crutchfield, The Honorable Rick M. Littlefield, State Senator, District 14, State Senator, District 1
2001 OK AG 33
Decided: 07/16/2001
Oklahoma Attorney General Opinions

¶26 It is, therefore, the official Opinion of the Attorney General that:

1. A. If an incumbent member of a local board of education fails to satisfy the 15-hour continuing education requirement during any full term of office as required by 70 O.S. Supp.2000, § 5-110.1(A), that board member is ineligible to run for reelection. 70 O.S. Supp.2000, § 5-110.1(D).
   B. If an incumbent school board member who fails to satisfy the 15-hour continuing education requirement during any full term of office as required by 70 O.S. Supp.2000, § 5-110.1(A), nonetheless runs for reelection and his or her ability to run for reelection under 26 O.S. Supp. 1994, § 5-118 is not successfully challenged within the time for protest allowed by law, the member is eligible to hold the office if he or she is reelected.
2. If a reelected school board member who fails to satisfy the 15-hour continuing education requirement required by 70 O.S. Supp.2000, § 5-110.1(A) possesses a due and proper certificate of election to an office, the party is prima facie entitled to qualify and assume the duties of such office, and the Board cannot refuse to seat him or her.
3. Under 51 O.S. 1991, § 8, a local school board has a duty to make a factual determination whether an office is vacant because a member has a final conviction of a felony or an offense involving his or her official oath. If a board refuses to make such a determination, it can be forced to do so by a writ of mandamus. However, the board cannot declare vacant the ineligible incumbent's position without affording the office holder an opportunity for due process, which at a minimum includes notice and an opportunity to be heard. What would constitute due process in a particular situation constitutes a question of fact, beyond the scope of an Attorney General Opinion. 74 O.S. Supp. 2000, § 18b(A)(5).
4. Even if a re-elected incumbent school board member were to hold the office illegally, actions taken by the board would be valid.

This opinion seems to indicate that if no one challenged the candidate with the election board he or she is prima facie entitled to qualify and assume the duties of such office, and the Board cannot refuse to seat him or her.

Ray

From: Mark Ramsey

Sent: Monday, April 10, 2023 2:43 PM

To: OAMA luistserv (OAMA@lists.imla.org)

Subject: [Oama] Town Meeting Elections

Greetings!

I have a small town that uses the Town Meeting Act for its elections (11 O.S. §16-301, et seq.).  The election was held and new trustees were elected.  One of the candidates (trustee-elect) appears to be disqualified based on residency.  The new trustees have not been sworn.  How can this issue be raised?

11 O.S. §16-306(C) requires a candidate to be a registered voter at an address in the town for at least six (6) months prior to the date of the Town Meeting.  11 O.S. §8-101 requires a candidate to be a resident of the Town.

As I read the statutes, if the candidate was not qualified at the time of election, the candidate is not qualified to take office.

51 O.S. §8 provides that a vacancy exists upon failure to qualify and that the Town Board determines the fact of a vacancy.

In order to take up the matter, the Town Board can put an item on the agenda, but is this before or after the new members are sworn?

The Oklahoma Constitution, Article 23 §10 says incumbents continue in office until a successor is appointed or elected and qualified.  Does this mean the existing Town Board can decide the qualifications of the new board members?

Any help is appreciated!

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 at postmaster@soonerlaw.com and delete the original and all copies of this transmission (including any attachments) without reading or saving in any manner. Thank you.

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Thanks, Matt.  We seem to be in agreement.  An added wrinkle is that the new members can be sworn on the second Monday following the election (11 Okla. Stat. §8-102).  That means there is not much time to give notice and an opportunity for hearing (and opportunity to obtain counsel).  I also note that a person signing the form to become a candidate knowing the person is ineligible is a punishable by a $1,000 fine.  Who says municipal law isn’t fun!

If the new members are sworn before there can be a hearing, is the subject of the hearing disqualified from voting?

Thanks again!

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.commailto:apixley@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 at postmaster@soonerlaw.commailto:postmaster@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: Matt Love matt.love@gmail.com
Sent: Wednesday, April 12, 2023 3:55 PM
To: Mark Ramsey MRamsey@soonerlaw.com
Cc: OAMA luistserv (OAMA@lists.imla.org) oama@lists.imla.org
Subject: Re: [Oama] Town Meeting Elections

Mark,

This could be a mini-law school exam question if Municipal law were taught in law school! Here's my thoughts, in no particular order:

Both the Constitution and State statutes provide that an Officer holds over until their successor is elected and qualified. 51 O.S. 8 seems to create a tension with those provisions since it says that an office shall become vacant if the office holder fails to qualify as required by law. The way I would harmonize those two provisions is - there's a difference between an elected office where, say, no one files to run for the next term and a situation where a person is elected and sworn in, but then has some defect in their qualification that comes up post-swearing in. In the former, the prior office hold continues to hold office while in the latter the incumbents term ended and the new person assumed the office to only later have a defect raised as to their qualification. In your situation, I think this could be applied as follows - if there's a way to challenge their eligibility pre-swearing in, and that challenge is successful, then the official whose term is expiring would assuredly hold over since a successor has not been elected and qualified. By contrast, if the dispute as to their eligibility is not resolved until after they are sworn in, then presumably they would assume office, the claim of a defect in their title to hold office would get resolved, and they may later have to vacate office (keep in mind - the de facto officer doctrine would protect their actions while they were holding the office). I also think it's relevant to note that perhaps Section 8's verbiage was designed to address qualification defects that arise after the officer starts their term. See e.g. Nesbitt v. Apple, 1995 OK 20, 891 P.2d 1235 (allegation was that, after assuming office, the office holder failed to timely file their oath with the secretary of state). Nesbitt is also the case that requires Due Process prior to declaring that an incumbent has vacated their office.

Next, I don't know that the current Board could take any action related to the incoming Board's qualifications to hold office. 51 O.S. 8 grants the power to declare a vacancy to the body that has the authority to fill "such vacancy." That's obviously the Town Board, but which Town Board? Here, if the qualification issue does end up creating a vacancy, then the vacancy could not be created (and then filled) until after the term of office begins. After all, it's worded that the authority is granted specifically to the authority that has the power to fill the specific vacancy. Any other interpretation would empower a lame duck governing body to fill prospective vacancies that will occur after the incumbent's terms have expired and their successors have started their respective terms.

Lastly, I'm not sure there is much the Town could do to challenge the validity of the person's election. There are cases arising under the normal election statutes that identify who can challenge eligibility and when they can do so. Those aren't in play here. But under the Town Meeting Act, specifically 11 O.S. 16-310 to 16-313, establishes a process for contesting eligibility and validity of the outcome, including establishing who has standing to assert such a challenge. It also has a limited timeframe to raise the contest.

At this point, it seems like you won't have much recourse other than to swear them in. After they are sworn in, the residency issue won't go away. 11 O.S. 8-101 requires that elected officials of a Town maintain their residency during their term and that they cease to hold office if they cease to be a resident. If, during the term (perhaps shortly into the term) someone does raise the question of residency, the question the Town Board would have is whether, at that point, the person is no longer a resident of the Town. These kinds of statutory provisions are not self executing, and the Courts (see Nesbitt v. Apple, 1995 OK 20, 891 P.2d 1235) do require procedural due process before the body with the power to declare a vacancy (i.e. the body with the power to fill the vacancy) acts to declare that the Office has been vacated.

Matt

On Mon, Apr 10, 2023 at 2:44 PM Mark Ramsey <MRamsey@soonerlaw.commailto:MRamsey@soonerlaw.com> wrote:
Greetings!

I have a small town that uses the Town Meeting Act for its elections (11 O.S. §16-301, et seq.).  The election was held and new trustees were elected.  One of the candidates (trustee-elect) appears to be disqualified based on residency.  The new trustees have not been sworn.  How can this issue be raised?

11 O.S. §16-306(C) requires a candidate to be a registered voter at an address in the town for at least six (6) months prior to the date of the Town Meeting.  11 O.S. §8-101 requires a candidate to be a resident of the Town.

As I read the statutes, if the candidate was not qualified at the time of election, the candidate is not qualified to take office.

51 O.S. §8 provides that a vacancy exists upon failure to qualify and that the Town Board determines the fact of a vacancy.

In order to take up the matter, the Town Board can put an item on the agenda, but is this before or after the new members are sworn?

The Oklahoma Constitution, Article 23 §10 says incumbents continue in office until a successor is appointed or elected and qualified.  Does this mean the existing Town Board can decide the qualifications of the new board members?

Any help is appreciated!

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.commailto:apixley@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 at postmaster@soonerlaw.commailto:postmaster@soonerlaw.com and delete the original and all copies of this transmission (including any attachments) without reading or saving in any manner. Thank you.

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