An odd question for the brain trust - City X has a wrecker company that is
on the Police Department's rotation for when cars get impounded. The spouse
of the owner of that company has applied for a job with the City (at the PD
as it happens, as a dispatcher). If the spouse were to be hired, would the
wrecker company be disqualified from being on the rotation?

With the exception of circumstances where the PD would want a vehicle towed
to the City's property (i.e. if it was evidence), the wrecker does not
receive any money directly from the City. When they get the call per the
rotation, they tow and impound the car and the owner is the one that ends
up paying the company to get the vehicle out of impound (and, if they
don't, then it ends up getting sold by the company). So there's no direct
financial exchange between the City and the company. The only relationship
is per the Title 47 statute whereby the company gets on the rotation log.
Would that qualify as "contracting" with the City for 8-113 purposes? If
not, would there be any other prohibition or restriction anyone could think
of?

Matt,

The primary statute on conflicts in this situation would seem to 11 Okla. Stat. §8-113.  Section 8-133 provides in part that:

A.            Except as otherwise provided by this section, no municipal officer or employee, or any business in which the officer, employee, or spouse of the officer or employee has a proprietary interest, shall engage in:

1.        Selling, buying, or leasing property, real or personal, to or from the municipality;
   

2.        Contracting with the municipality; or
   

3.        Buying or bartering for or otherwise engaging in any manner in the acquisition of any bonds, warrants, or other evidence of indebtedness of the municipality.
   

Strictly speaking, I would not think there is a conflict because when a wrecker is placed on the city’s rotation there generally is not a contract entered into between the city and the wrecker service.  Instead, that relationship is governed by 47 OS § 952.  Also, 1995 OK AG 41 opined that it was not a conflict of interest for city employees, such as police officers and public safety workers, to call for an ambulance service owned by a city council member to transport an injured individual where the cost of the call is borne by private individuals.  This opinion is helpful in answering this question, and also discussed the constitutional conflict provision.

That said, the dispatcher is generally the one who makes the calls to the wrecker.  There are situations when the next wrecker does not answer immediately that the dispatcher will call the next wrecker on the rotation.  If the dispatcher is married to the owner of one of the companies on the rotation, the city might receive some complaints that the dispatcher is allowing her husband’s wrecker service more time to answer, or is not allowing enough time for other wreckers to respond before continuing to the next wrecker service (particularly if the next wrecker service on the rotation is her husband’s wrecker company).

Jonathan E. Miller
City Attorney
City of Mustang
1501 N. Mustang Road
Mustang, Oklahoma 73064
Telephone: (405) 376-7746
Facsimile: (405) 376-7721

This email is sent by the City Attorney and may contain information that is privileged or confidential. If you received this email in error, please notify the sender by reply email and delete the email and any attachments.  If you are a and officer, employee or agent of the City of Mustang, you should not share this email with others.  Sharing this email may result in a loss of the attorney-client privilege.

From: Matt Love matt.love@gmail.com
Sent: Thursday, November 17, 2022 3:55 PM
To: OAMA luistserv (OAMA@lists.imla.org) oama@lists.imla.org
Subject: [Oama] Employees and PD Wrecker Services

An odd question for the brain trust - City X has a wrecker company that is on the Police Department's rotation for when cars get impounded. The spouse of the owner of that company has applied for a job with the City (at the PD as it happens, as a dispatcher). If the spouse were to be hired, would the wrecker company be disqualified from being on the rotation?

With the exception of circumstances where the PD would want a vehicle towed to the City's property (i.e. if it was evidence), the wrecker does not receive any money directly from the City. When they get the call per the rotation, they tow and impound the car and the owner is the one that ends up paying the company to get the vehicle out of impound (and, if they don't, then it ends up getting sold by the company). So there's no direct financial exchange between the City and the company. The only relationship is per the Title 47 statute whereby the company gets on the rotation log. Would that qualify as "contracting" with the City for 8-113 purposes? If not, would there be any other prohibition or restriction anyone could think of?

Jon & Matt:  The City of Yukon revised its Wrecker rotation policy back in 2021 and a disgruntled out of City Wrecker service sued.  OMAG assigned Jack Love to defend the suit.  Jack may have some insight on the process involved and the potential for conflict with a city employee.

Roger Rinehart
Rinehart, Rinehart & Rinehart, P.C.
Attorneys at Law
115 S. Rock Island Avenue
El Reno, OK 73036

405-262-2360 (phone)
405-262-2395 (fax)

Roger@Rinehartlaw.netmailto:Roger@Rinehartlaw.net
www.Rinehartlaw.nethttp://www.rinehartlaw.net/

From: Jon Miller JMiller@cityofmustang.org
Sent: Thursday, November 17, 2022 4:24 PM
To: Matt Love matt.love@gmail.com; OAMA luistserv (OAMA@lists.imla.org) oama@lists.imla.org
Subject: [Oama] Re: Employees and PD Wrecker Services

Matt,

The primary statute on conflicts in this situation would seem to 11 Okla. Stat. §8-113.  Section 8-133 provides in part that:

A.            Except as otherwise provided by this section, no municipal officer or employee, or any business in which the officer, employee, or spouse of the officer or employee has a proprietary interest, shall engage in:

1.        Selling, buying, or leasing property, real or personal, to or from the municipality;
   

2.        Contracting with the municipality; or
   

3.        Buying or bartering for or otherwise engaging in any manner in the acquisition of any bonds, warrants, or other evidence of indebtedness of the municipality.
   

Strictly speaking, I would not think there is a conflict because when a wrecker is placed on the city’s rotation there generally is not a contract entered into between the city and the wrecker service.  Instead, that relationship is governed by 47 OS § 952.  Also, 1995 OK AG 41 opined that it was not a conflict of interest for city employees, such as police officers and public safety workers, to call for an ambulance service owned by a city council member to transport an injured individual where the cost of the call is borne by private individuals.  This opinion is helpful in answering this question, and also discussed the constitutional conflict provision.

That said, the dispatcher is generally the one who makes the calls to the wrecker.  There are situations when the next wrecker does not answer immediately that the dispatcher will call the next wrecker on the rotation.  If the dispatcher is married to the owner of one of the companies on the rotation, the city might receive some complaints that the dispatcher is allowing her husband’s wrecker service more time to answer, or is not allowing enough time for other wreckers to respond before continuing to the next wrecker service (particularly if the next wrecker service on the rotation is her husband’s wrecker company).

Jonathan E. Miller
City Attorney
City of Mustang
1501 N. Mustang Road
Mustang, Oklahoma 73064
Telephone: (405) 376-7746
Facsimile: (405) 376-7721

This email is sent by the City Attorney and may contain information that is privileged or confidential. If you received this email in error, please notify the sender by reply email and delete the email and any attachments.  If you are a and officer, employee or agent of the City of Mustang, you should not share this email with others.  Sharing this email may result in a loss of the attorney-client privilege.

From: Matt Love <matt.love@gmail.commailto:matt.love@gmail.com>
Sent: Thursday, November 17, 2022 3:55 PM
To: OAMA luistserv (OAMA@lists.imla.orgmailto:OAMA@lists.imla.org) <oama@lists.imla.orgmailto:oama@lists.imla.org>
Subject: [Oama] Employees and PD Wrecker Services

An odd question for the brain trust - City X has a wrecker company that is on the Police Department's rotation for when cars get impounded. The spouse of the owner of that company has applied for a job with the City (at the PD as it happens, as a dispatcher). If the spouse were to be hired, would the wrecker company be disqualified from being on the rotation?

With the exception of circumstances where the PD would want a vehicle towed to the City's property (i.e. if it was evidence), the wrecker does not receive any money directly from the City. When they get the call per the rotation, they tow and impound the car and the owner is the one that ends up paying the company to get the vehicle out of impound (and, if they don't, then it ends up getting sold by the company). So there's no direct financial exchange between the City and the company. The only relationship is per the Title 47 statute whereby the company gets on the rotation log. Would that qualify as "contracting" with the City for 8-113 purposes? If not, would there be any other prohibition or restriction anyone could think of?