Absentee Council Member
One of the towns I represent has encountered an issue with an absentee
council member. I am in the process of verifying the council member's
attendance record, but my understanding is that the member meets
requirements of 11 O.S. 8-108, which says: Whenever a member of the
municipal governing body is absent from more than one-half of all meetings
of the governing body, regular and special, held within any period of four
(4) months, he shall thereupon cease to hold office.
My question is what are the procedures once a council member triggers this
statute? Is a council vote required to remove the member? Is notice or
publication of the situation required? Is there an appeals process? The
statute reads like removal is automatic, but surely it isn't that simple.
Phillip N. Morton, J.D.
P.O. Box 1886
Ada, OK 74820
Phone: 580-759-0049
Fax: 580-759-2177
Email: MortonLawOffice@gmail.com
CONFIDENTIAL AND PRIVILEGED COMMUNICATION: This electronic mail
transmission, as well as any attachments, may contain confidential
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In my opinion due process would require the member be given an opportunity to be heard and the removal confirmed by city council after a hearing if a hearing is requested,.
CONFIDENTIALITY NOTE: This transmission is protected by the Electronic Communications Privacy Act, 18 U.S.C. Sections 2510-2521 and intended to be delivered only to the named addressee(s) This e-mail message is intended only for the personal use of the recipient(s) named above. This message is or may be an attorney-client communication and as such privileged and confidential. If you are not an intended recipient, you may not review, copy or distribute this message. If you have received this communication in error, please notify us immediately by e-mail and delete the original message.
s/ David A. Davis
LAW OFFICE OF DAVID A. DAVIS
4312 N. Classen Blvd.
OKLAHOMA CITY, OK 73118
405 840-6353
405 557-0777 (FAX)
ddavislaw@live.commailto:ddavislaw@live.com
From: Oama oama-bounces@lists.imla.org on behalf of Phillip Morton mortonlawoffice@gmail.com
Sent: Friday, January 3, 2020 4:43 PM
To: oama@lists.imla.org oama@lists.imla.org
Subject: [Oama] Absentee Council Member
One of the towns I represent has encountered an issue with an absentee council member. I am in the process of verifying the council member's attendance record, but my understanding is that the member meets requirements of 11 O.S. 8-108, which says: Whenever a member of the municipal governing body is absent from more than one-half of all meetings of the governing body, regular and special, held within any period of four (4) months, he shall thereupon cease to hold office.
My question is what are the procedures once a council member triggers this statute? Is a council vote required to remove the member? Is notice or publication of the situation required? Is there an appeals process? The statute reads like removal is automatic, but surely it isn't that simple.
Phillip N. Morton, J.D.
P.O. Box 1886
Ada, OK 74820
Phone: 580-759-0049
Fax: 580-759-2177
Email: MortonLawOffice@gmail.commailto:MortonLawOffice@gmail.com
CONFIDENTIAL AND PRIVILEGED COMMUNICATION: This electronic mail transmission, as well as any attachments, may contain confidential information that is legally privileged. If you are not the intended recipient, any disclosure, copying, distribution, or use of any of the information contained in or attached to this message is STRICTLY PROHIBITED by law. If you have received this message in error, please immediately notify us by replying to this email or by calling 580-759-0049.
The Attorney General's Position
http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=62661 is
that the remaining board members have to take some sort of affirmative
action to actually remove him from office.
On Fri, Jan 3, 2020 at 4:44 PM Phillip Morton mortonlawoffice@gmail.com
wrote:
One of the towns I represent has encountered an issue with an absentee
council member. I am in the process of verifying the council member's
attendance record, but my understanding is that the member meets
requirements of 11 O.S. 8-108, which says: Whenever a member of the
municipal governing body is absent from more than one-half of all meetings
of the governing body, regular and special, held within any period of four
(4) months, he shall thereupon cease to hold office.
My question is what are the procedures once a council member triggers this
statute? Is a council vote required to remove the member? Is notice or
publication of the situation required? Is there an appeals process? The
statute reads like removal is automatic, but surely it isn't that simple.
Phillip N. Morton, J.D.
P.O. Box 1886
Ada, OK 74820
Phone: 580-759-0049
Fax: 580-759-2177
Email: MortonLawOffice@gmail.com
CONFIDENTIAL AND PRIVILEGED COMMUNICATION: This electronic mail
transmission, as well as any attachments, may contain confidential
information that is legally privileged. If you are not the intended
recipient, any disclosure, copying, distribution, or use of any of the
information contained in or attached to this message is STRICTLY PROHIBITED
by law. If you have received this message in error, please immediately
notify us by replying to this email or by calling 580-759-0049.
Oama mailing list
Oama@lists.imla.org
http://lists.imla.org/mailman/listinfo/oama_lists.imla.org
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Corry S. Kendall
Attorney at Law
216 W. Commerce
Altus, OK 73521
corry.kendall@swoklaw.com
Phone: (580) 482-3355
Fax: (580) 954-0060
www.swoklaw.com
Please note the new email address: corry.kendall@swoklaw.com
corry.kendall@swoklaw.com
Council should vote to establish in the minutes the status of meetings missed, after proper agenda item. This documents that the council person has ceased to be a council person.
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
CONFIDENTIALITY NOTE:
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Visit us at our website http://www.cheekfalcone.com/
From: Oama oama-bounces@lists.imla.org On Behalf Of Corry Kendall
Sent: Friday, January 03, 2020 4:50 PM
To: Phillip Morton mortonlawoffice@gmail.com
Cc: OAMA luistserv (OAMA@lists.imla.org) oama@lists.imla.org
Subject: Re: [Oama] Absentee Council Member
The Attorney General's Position http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=62661 is that the remaining board members have to take some sort of affirmative action to actually remove him from office.
On Fri, Jan 3, 2020 at 4:44 PM Phillip Morton <mortonlawoffice@gmail.commailto:mortonlawoffice@gmail.com> wrote:
One of the towns I represent has encountered an issue with an absentee council member. I am in the process of verifying the council member's attendance record, but my understanding is that the member meets requirements of 11 O.S. 8-108, which says: Whenever a member of the municipal governing body is absent from more than one-half of all meetings of the governing body, regular and special, held within any period of four (4) months, he shall thereupon cease to hold office.
My question is what are the procedures once a council member triggers this statute? Is a council vote required to remove the member? Is notice or publication of the situation required? Is there an appeals process? The statute reads like removal is automatic, but surely it isn't that simple.
Phillip N. Morton, J.D.
P.O. Box 1886
Ada, OK 74820
Phone: 580-759-0049
Fax: 580-759-2177
Email: MortonLawOffice@gmail.commailto:MortonLawOffice@gmail.com
CONFIDENTIAL AND PRIVILEGED COMMUNICATION: This electronic mail transmission, as well as any attachments, may contain confidential information that is legally privileged. If you are not the intended recipient, any disclosure, copying, distribution, or use of any of the information contained in or attached to this message is STRICTLY PROHIBITED by law. If you have received this message in error, please immediately notify us by replying to this email or by calling 580-759-0049.
Oama mailing list
Oama@lists.imla.orgmailto:Oama@lists.imla.org
http://lists.imla.org/mailman/listinfo/oama_lists.imla.org
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Corry S. Kendall
Attorney at Law
216 W. Commerce
Altus, OK 73521
corry.kendall@swoklaw.commailto:corry.kendall@swoklaw.com
Phone: (580) 482-3355
Fax: (580) 954-0060
www.swoklaw.comhttp://www.swoklaw.com
Please note the new email address: corry.kendall@swoklaw.commailto:corry.kendall@swoklaw.com
I agree that it would be useful, but I also agree with the previous post that due process requires notice and an opportunity to be heard. Once the Town Board or City Council finds that the requisite number of meetings have been missed, they should also find that a vacancy has occurred since the triggering date. An instructive case is Nesbitt v. Apple, 891 P.2d 1235. No notice, hearing, and finding, means no vacancy. I assume the member is disqualified as a matter of law, but continues to serve as a de facto member.
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: Oama oama-bounces@lists.imla.org On Behalf Of Robert Thompson
Sent: Friday, January 03, 2020 5:16 PM
To: Corry Kendall corry.kendall@swoklaw.com; Phillip Morton mortonlawoffice@gmail.com
Cc: OAMA luistserv (OAMA@lists.imla.org) oama@lists.imla.org
Subject: Re: [Oama] Absentee Council Member
Council should vote to establish in the minutes the status of meetings missed, after proper agenda item. This documents that the council person has ceased to be a council person.
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
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/https://nam04.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.cheekfalcone.com%2F&data=02%7C01%7Cmramsey%40soonerlaw.com%7C90ddefd6893d48c3991d08d790a3129e%7Ccd3766af25f04fe2829ce96eb13be37c%7C0%7C0%7C637136902381147702&sdata=kQOn%2BKoatWWjs0oNz4pRYKkJxBwgHP5M%2B8Y0pVPu4sc%3D&reserved=0
From: Oama <oama-bounces@lists.imla.orgmailto:oama-bounces@lists.imla.org> On Behalf Of Corry Kendall
Sent: Friday, January 03, 2020 4:50 PM
To: Phillip Morton <mortonlawoffice@gmail.commailto:mortonlawoffice@gmail.com>
Cc: OAMA luistserv (OAMA@lists.imla.orgmailto:OAMA@lists.imla.org) <oama@lists.imla.orgmailto:oama@lists.imla.org>
Subject: Re: [Oama] Absentee Council Member
The Attorney General's Position https://nam04.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.oscn.net%2Fapplications%2Foscn%2FDeliverDocument.asp%3FCiteID%3D62661&data=02%7C01%7Cmramsey%40soonerlaw.com%7C90ddefd6893d48c3991d08d790a3129e%7Ccd3766af25f04fe2829ce96eb13be37c%7C0%7C0%7C637136902381157699&sdata=FsXY%2F4G%2BbuGvfpGQ3kgyyKS%2FRQ%2F%2Fi8Og1CB391MwuGU%3D&reserved=0 is that the remaining board members have to take some sort of affirmative action to actually remove him from office.
On Fri, Jan 3, 2020 at 4:44 PM Phillip Morton <mortonlawoffice@gmail.commailto:mortonlawoffice@gmail.com> wrote:
One of the towns I represent has encountered an issue with an absentee council member. I am in the process of verifying the council member's attendance record, but my understanding is that the member meets requirements of 11 O.S. 8-108, which says: Whenever a member of the municipal governing body is absent from more than one-half of all meetings of the governing body, regular and special, held within any period of four (4) months, he shall thereupon cease to hold office.
My question is what are the procedures once a council member triggers this statute? Is a council vote required to remove the member? Is notice or publication of the situation required? Is there an appeals process? The statute reads like removal is automatic, but surely it isn't that simple.
Phillip N. Morton, J.D.
P.O. Box 1886
Ada, OK 74820
Phone: 580-759-0049
Fax: 580-759-2177
Email: MortonLawOffice@gmail.commailto:MortonLawOffice@gmail.com
CONFIDENTIAL AND PRIVILEGED COMMUNICATION: This electronic mail transmission, as well as any attachments, may contain confidential information that is legally privileged. If you are not the intended recipient, any disclosure, copying, distribution, or use of any of the information contained in or attached to this message is STRICTLY PROHIBITED by law. If you have received this message in error, please immediately notify us by replying to this email or by calling 580-759-0049.
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--
Corry S. Kendall
Attorney at Law
216 W. Commerce
Altus, OK 73521
corry.kendall@swoklaw.commailto:corry.kendall@swoklaw.com
Phone: (580) 482-3355
Fax: (580) 954-0060
www.swoklaw.comhttps://nam04.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.swoklaw.com&data=02%7C01%7Cmramsey%40soonerlaw.com%7C90ddefd6893d48c3991d08d790a3129e%7Ccd3766af25f04fe2829ce96eb13be37c%7C0%7C0%7C637136902381167698&sdata=4ZatC2ypg9HsVivLmMn7XlaQ%2F9lLwZWjFPxm60spLOs%3D&reserved=0
Please note the new email address: corry.kendall@swoklaw.commailto:corry.kendall@swoklaw.com
We have encountered this problem before and have staffed it with OMAG and a few others, as it pertained to a quorum issue and a particular vote.
I certainly agree that affirmative action needs to be taken by the Council. David’s recommendation about an agenda item for discussion and action is spot on. I would recommend that a certified letter with a copy of the agenda be sent to the the specific Council member and incorporate the notice into the finding at the meeting. The Council would declare the position vacant by operation of law and pass a resolution calling a special election (if applicable). You might not have to do this depending on the term and how close you are to the next scheduled election. I might recommend having a Resolution prepared and on the agenda for action if the Council doesn’t want to call a special meeting or wait until the next regular meeting. This gives them the ability to act immediately or take no action depending on the outcome. Note: Our charter stated the missed meetings had to be “without good cause” for removal, so make sure the finding by the Council is clear, properly recited and recorded, to avoid any issues down the road if you have similar language in your charter.
Additionally, removal of the member probably cures the same problem with your Authorities, assuming the member also sits as a member on your trust authorities as many do. It might be good to recite the other positions the member holds on your Council agenda item.
Just some thoughts. Good luck.
Brad
P.S. I’m new to the email group but have found the feedback incredibly informative and helpful.
Sent from my iPhone
On Jan 3, 2020, at 4:49 PM, david davis ddavislaw@live.com wrote:
In my opinion due process would require the member be given an opportunity to be heard and the removal confirmed by city council after a hearing if a hearing is requested,.
CONFIDENTIALITY NOTE: This transmission is protected by the Electronic Communications Privacy Act, 18 U.S.C. Sections 2510-2521 and intended to be delivered only to the named addressee(s) This e-mail message is intended only for the personal use of the recipient(s) named above. This message is or may be an attorney-client communication and as such privileged and confidential. If you are not an intended recipient, you may not review, copy or distribute this message. If you have received this communication in error, please notify us immediately by e-mail and delete the original message.
s/ David A. Davis
LAW OFFICE OF DAVID A. DAVIS
4312 N. Classen Blvd.
OKLAHOMA CITY, OK 73118
405 840-6353
405 557-0777 (FAX)
ddavislaw@live.com
From: Oama oama-bounces@lists.imla.org on behalf of Phillip Morton mortonlawoffice@gmail.com
Sent: Friday, January 3, 2020 4:43 PM
To: oama@lists.imla.org oama@lists.imla.org
Subject: [Oama] Absentee Council Member
One of the towns I represent has encountered an issue with an absentee council member. I am in the process of verifying the council member's attendance record, but my understanding is that the member meets requirements of 11 O.S. 8-108, which says: Whenever a member of the municipal governing body is absent from more than one-half of all meetings of the governing body, regular and special, held within any period of four (4) months, he shall thereupon cease to hold office.
My question is what are the procedures once a council member triggers this statute? Is a council vote required to remove the member? Is notice or publication of the situation required? Is there an appeals process? The statute reads like removal is automatic, but surely it isn't that simple.
Phillip N. Morton, J.D.
P.O. Box 1886
Ada, OK 74820
Phone: 580-759-0049
Fax: 580-759-2177
Email: MortonLawOffice@gmail.com
CONFIDENTIAL AND PRIVILEGED COMMUNICATION: This electronic mail transmission, as well as any attachments, may contain confidential information that is legally privileged. If you are not the intended recipient, any disclosure, copying, distribution, or use of any of the information contained in or attached to this message is STRICTLY PROHIBITED by law. If you have received this message in error, please immediately notify us by replying to this email or by calling 580-759-0049.
Oama mailing list
Oama@lists.imla.org
http://lists.imla.org/mailman/listinfo/oama_lists.imla.org
I agree with Brad as a more complete procedure.
Harlan Pinkerton
Town of Disney
Sent from my iPhone
On Jan 4, 2020, at 2:34 PM, Law office bradcarterlawoffice@gmail.com wrote:
We have encountered this problem before and have staffed it with OMAG and a few others, as it pertained to a quorum issue and a particular vote.
I certainly agree that affirmative action needs to be taken by the Council. David’s recommendation about an agenda item for discussion and action is spot on. I would recommend that a certified letter with a copy of the agenda be sent to the the specific Council member and incorporate the notice into the finding at the meeting. The Council would declare the position vacant by operation of law and pass a resolution calling a special election (if applicable). You might not have to do this depending on the term and how close you are to the next scheduled election. I might recommend having a Resolution prepared and on the agenda for action if the Council doesn’t want to call a special meeting or wait until the next regular meeting. This gives them the ability to act immediately or take no action depending on the outcome. Note: Our charter stated the missed meetings had to be “without good cause” for removal, so make sure the finding by the Council is clear, properly recited and recorded, to avoid any issues down the road if you have similar language in your charter.
Additionally, removal of the member probably cures the same problem with your Authorities, assuming the member also sits as a member on your trust authorities as many do. It might be good to recite the other positions the member holds on your Council agenda item.
Just some thoughts. Good luck.
Brad
P.S. I’m new to the email group but have found the feedback incredibly informative and helpful.
Sent from my iPhone
On Jan 3, 2020, at 4:49 PM, david davis ddavislaw@live.com wrote:
In my opinion due process would require the member be given an opportunity to be heard and the removal confirmed by city council after a hearing if a hearing is requested,.
CONFIDENTIALITY NOTE: This transmission is protected by the Electronic Communications Privacy Act, 18 U.S.C. Sections 2510-2521 and intended to be delivered only to the named addressee(s) This e-mail message is intended only for the personal use of the recipient(s) named above. This message is or may be an attorney-client communication and as such privileged and confidential. If you are not an intended recipient, you may not review, copy or distribute this message. If you have received this communication in error, please notify us immediately by e-mail and delete the original message.
s/ David A. Davis
LAW OFFICE OF DAVID A. DAVIS
4312 N. Classen Blvd.
OKLAHOMA CITY, OK 73118
405 840-6353
405 557-0777 (FAX)
ddavislaw@live.com
From: Oama oama-bounces@lists.imla.org on behalf of Phillip Morton mortonlawoffice@gmail.com
Sent: Friday, January 3, 2020 4:43 PM
To: oama@lists.imla.org oama@lists.imla.org
Subject: [Oama] Absentee Council Member
One of the towns I represent has encountered an issue with an absentee council member. I am in the process of verifying the council member's attendance record, but my understanding is that the member meets requirements of 11 O.S. 8-108, which says: Whenever a member of the municipal governing body is absent from more than one-half of all meetings of the governing body, regular and special, held within any period of four (4) months, he shall thereupon cease to hold office.
My question is what are the procedures once a council member triggers this statute? Is a council vote required to remove the member? Is notice or publication of the situation required? Is there an appeals process? The statute reads like removal is automatic, but surely it isn't that simple.
Phillip N. Morton, J.D.
P.O. Box 1886
Ada, OK 74820
Phone: 580-759-0049
Fax: 580-759-2177
Email: MortonLawOffice@gmail.com
CONFIDENTIAL AND PRIVILEGED COMMUNICATION: This electronic mail transmission, as well as any attachments, may contain confidential information that is legally privileged. If you are not the intended recipient, any disclosure, copying, distribution, or use of any of the information contained in or attached to this message is STRICTLY PROHIBITED by law. If you have received this message in error, please immediately notify us by replying to this email or by calling 580-759-0049.
Oama mailing list
Oama@lists.imla.org
http://lists.imla.org/mailman/listinfo/oama_lists.imla.org
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